[games_access] games_access Digest, Vol 101, Issue 27

[Ian Hamilton]

Hi Scott, good to hear from you, another UK reply for you -

The thing is, the majority (115/196) of the countries in the world have now signed up to putting exactly that legislation in place, by ratifying the UNCRPD and recognising equal access to culture, recreation, leisure and sport as a basic right, which is obviously quite a significant step on from the ADA. Many countries already have the legislation in place, including the UK. Ours (the equalities act) incrementally came into effect between Oct 2010 and April 2011.

So for lots of us, rather than a question of if, the legislation is already here, so it's a question of when and in what circumstances litigation is beneficial and how best to handle it. When the point comes when there is such wide awareness and general good practice across the industry that it is actually useful (and that time categorically isn't now, all that can be achieved now is unfairly singling out people who don't know any better and generating lots of bad feeling and negative press in the process) the 'reasonable' thing will help enormously.

I can't in any way speak for the USA but that's how it works over here at least, there are no set criteria to work to that would ban the Wii or homogenise game mechanics, just governmental best practice recommendations for which standards and guidelines to work to (for web, it's BS8878 & WCAG). It's completely impossible to be sued for not being AA compliant. You can however be sued if there are adaptations you could have made but haven't, without any reasonable justification. 

For people with small budgets, cost is a reasonable justification, for web at least there certainly haven't been any small studios shutting up shop due to accessibility litigation fears. It's the same general sweeping law across every industry, and all types of discrimination (age/sex/race etc too).. non-compliance with standards is not illegal, but unreasonable inequality and discrimination is. 

Realistically litigation is extremely rare, when it does happen it's people / advocacy groups taking on large wealthy corporations who have absolutely no excuse and are deliberately dragging their heels. That approach has only started to work now that the sector is mature enough that organisations like that are the minority.

For the current state of the industry though, I completely agree with what you're saying. This in particular:

> > 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.


There are other means of positive re-enforcement, AbleGamers' GOTY award for example is fantastic and we need to see things that brought across into mainstream awards such as BAFTA, but more than anything else, the above is what is needed to get publishers' interest, a concrete business case demonstrating the exact profitability involved is vital. That can only be achieved with analytics, that's what we all need to be pushing for alongside the usual developer advocacy / education. It's pretty much all that I seem to bang on about, so apologies, but it really is important. 

Even more important again in fact. A concrete business case has been the holy grail for accessibility in other industries too, but it's next to impossible to calculate an accurate one. Games however are uniquely positioned to do it one thanks to the kind of analytics that are not only possible but already standard practice. So if the concrete business case for accessibility can be established for games then that data can be used to back up efforts in industries too, meaning benefit for an incredible number of people, effects being felt across a much wider spectrum than just the games industry.

Ian


> From: games_access-request at igda.org
> Subject: games_access Digest, Vol 101, Issue 27
> To: games_access at igda.org
> Date: Sun, 24 Jun 2012 18:58:16 -0400
> 
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> Today's Topics:
> 
>    1. Re: suits about discrimination on the	basisofdisability?
>       (Steve Spohn)
> 
> 
> ----------------------------------------------------------------------
> 
> Message: 1
> Date: Sun, 24 Jun 2012 18:58:14 -0400
> From: Steve Spohn <steve at ablegamers.com>
> Subject: Re: [games_access] suits about discrimination on the
> 	basisofdisability?
> To: Scott Puckett <puckett101 at yahoo.com>
> Cc: Mark Barlet <mark at ablegamers.com>,	IGDA Games Accessibility SIG
> 	Mailing List <games_access at igda.org>
> Message-ID:
> 	<CABrM+MU_vam_2La1U-vKBGkc2tzX_dYnQ+_48NnrSiBqGBkC-A at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
> 
> 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.
> >
 		 	   		  
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