[games_access] suits about discrimination on the basisofdisability?

Mon Jun 25 07:47:39 EDT 2012

Hi,

here are some thoughts:

* the CRPD cares also if something is "reasonable"

** not everything has to be done

* the CRPD gives examples but does not exclude something (games are part of
it)

* measures does not have to be a law, it can be also tax support and
support, consulting for more accessibility
* of course games cannot be accessible to all

* CRPD contains also points that request research, we need this (special for
silver gamer)

* CRPD request development of guidelines for design for all 

* accessibility features should be an option (not standard)

There are different cases for games and education games!

So we have to be careful for this.

Best regards,

Sandra

Von: games_access-bounces at igda.org [mailto:games_access-bounces at igda.org] Im
Auftrag von Steve Spohn
Gesendet: Montag, 25. Juni 2012 00:58
An: Scott Puckett
Cc: Mark Barlet; IGDA Games Accessibility SIG Mailing List
Betreff: Re: [games_access] suits about discrimination on the
basisofdisability?

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
<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1090&context=dl
j> &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 <mailto:steve at ablegamers.com>  Spohn 

Sent: Sunday, June 24, 2012 8:03 PM

To: IGDA <mailto:games_access at igda.org>  Games Accessibility SIG Mailing
List 

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 <mailto:steve at ablegamers.com>  Spohn 

Sent: Sunday, June 24, 2012 7:21 PM

To: IGDA Games Accessibility SIG Mailing List <mailto: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

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-- 
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Editor-In-Chief

The AbleGamers Foundation

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<http://www.ablegamers.org/>  | Facebook
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  _____  

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_______________________________________________
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 <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 <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 <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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