[games_access] Judge Tosses Blind Gamer's Suit vs. Sony

[Matt Troup]

Disclaimer: I am not a lawyer, and this is not legal anything.

Just to clarify the below statement and the discussion in general:

There was no trial.  The judge absolutely COULD NOT have required Sony to do 
anything, because the grounds the suit were brought on did not apply.

Videogames are not a public accommodation.

Here's an analogy for what happened, to help put this in perspective:

Scenario: Mark Bartlett punches me in the face.  I sue him for infringing on 
my patent.  The judge looks at me and says, "You dope, I have to toss this 
out.  Something may or may not have happened between you and Mark - but 
patent infringement was not it.  Try again".

If the trial finished with an affirmative ruling it would affect many 
different things.  Here are some other scenarios:

Scenario 1: I go to Best Buy and steal over $500 of video games.  Best Buy 
takes me to court.  My lawyer sites this case, showing that video games are 
a public accommodation.  I counter sue for millions of dollars saying Best 
Buy actively withheld me from a public accommodation.  I may or may not win 
the case, but I have grounds to make the claim.

Scenario 2: A new company is created and creates a service, like Itunes, 
that makes all music free.  The record industry, and Apple, goes nuts.  The 
new company cites this case saying that recorded music is a lot like 
videogames, and those have been deemed a public accommodation, so they 
should be able to distribute music for free.

Scenario 3: No games would ever be published.  Not because of reasons for 
ADA compliance, but because the company that created the game would not own 
the IP to have the right to work with a publisher.  The same would happen to 
Movies, Music, and Books.

I don't know a ton about the law, but I know enough to give a disclaimer at 
the top.

--------------------------------------------------
From: "John Bannick" <jbannick at 7128.com>
Sent: Saturday, February 27, 2010 1:30 PM
To: <games_access at igda.org>
Subject: [games_access]  Judge Tosses Blind Gamer's Suit vs. Sony

> Folks,
>
> There is a middle way.
> ADA requires "reasonable accommodation"
> Some games cannot be made accessible to a particular need.
> Just as some jobs cannot be made accessible to a particular need.
>
> The judge could have required that Sony put into place a program that at 
> least attempted ADA compliance.
> For example, applying VPAT 
> (http://www.itic.org/resources/voluntary-product-accessibility-template-vpat/) 
> and explaining why items were not VPAT compliant.
>
> Thus, a spelling bee game could not reasonably be made blind-accessible.
> One of Jim Kitchen's audio games could not reasonably be made 
> deaf-accessible.
> Nor could a musical game requiring chords reasonably be made one-switch 
> accessible.
> (Forgive me Barrie, Mark, etc. if it's been done.)
>
> Reasonable meaning without major changes, possibly changing the nature of 
> the game.
> Reasonable could also include economic viability.
>
> Furthermore, and significantly, If adding ADA compliance, or a specific 
> remediation, would add cost such as to make a game unprofitable, then by 
> definition it is not reasonable, in that it denies the game to those not 
> requiring that accommodation. Mark's point exactly, I think.
>
> What that requirement would do is inject the accessibility issue into the 
> developers' business process. Not a bad thing.
>
> Robert's anger is understandable.
> And I'm leery of government intervention, especially in anything that 
> could be close to censorship, or is economically unviable, as were price 
> controls.
> But VPAT's being applied to general software; ESRB is being applied to 
> games.
>
> Perhaps the judge could have applied a middle way.
>
> In any event, what this SIG is doing, and the individual efforts of Mark, 
> Barrie, Brian, Dark, Robert, and others is making a difference in the 
> developer community.
> Developers, some at least, are more aware of accessibility needs.
> Some are actually making specific changes (Niels Bauer games and some of 
> the folks Mark and Barrie work with come to mind.)
> It ain't perfect; it ain't enough. But it is progress.
>
> John
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