Is Everquest II a Place of Public Accomodation?

About two weeks ago, I told Ren that I'd write up a post about the Stern v. Sony decision, which was issued early last month. This is a case where a federal court essentially answered the title question of this post.  The answer, at least according to this particular court, is "no." 

The plaintiff in the case, Alexander Stern, sought to bring a claim under the federal Americans with Disabilities Act (the ADA) against Sony Online. According to his Complaint, Stern is an individual with multiple learning disabilities that impair his visual processing abilities. His visual difficulties make it hard for him to get things done in SOE games. Stern claimed that the ADA required Sony Online to make reasonable accommodations to its software for players like him who have disabilities.  Stern seemed to specifically want mods enabling additional visual and auditory cues, which he claimed that SOE failed to provide. (Michelle Hinn guest-blogged here about these sorts of mods back in 2007.)

The problem with Stern's claim was that the ADA section at issue applies only to public accomodations.  Relying on past decisions in California courts interpreting the ADA, Judge Percy Anderson concluded that public accommodations under the ADA were either 1) physical places or 2) goods or services with significant connections to physical places.  Because SOE games are not physical places or services connected to physical places, Judge Anderson concluded that the law did not apply to Stern's difficulties.  As the court put it, Stern was merely seeking to "fully enjoy the video games." This was something the federal law did not entitle him to demand of the defendant. (Stern's state law claims under the Unruh Act were left unresolved by the decision.)

Judge Anderson's opinion was required by law in California, I think.  In other states, Stern's claims may have had a little more traction.  In Illinois and New York, for instance, federal courts have suggested that the ADA is not limited to physical structures and might apply to web sites that provide the same sorts of products and services that are provided in physical spaces. (Would virtual worlds fit into that category?) For some more details about the law, I can recommend a recent student Note by Joshua Newton, Virtually Enabled: How Title III of the Americans with Disabilities Act Might Be Applied to Online Virtual Worlds, 62 Fed. Comm. L.J. 183 (2010).  You can find it here (PDF).

Broadly speaking, the Stern case and cases like it involve the recurring legal issue of cyberspace as place that Dan Hunter has written about in the past.  As Dan explains, Internet law in the past fifteen years or so has regularly grappled with claims by plaintiffs seeking to apply "real space" laws to analogous online contexts.  In some of my own writings, I've argued against the extension of certain place-based laws to the Internet.  In the case of virtual worlds, however, Dan and I have argued that the extension of chattel property laws to virtual property can be theoretically justified.

The ADA is interesting in this regard.  The ADA was enacted to combat discrimination against people with disabilities and to allow those with disabilities to participate more fully in society.  It sought (and still seeks) to strike a balance between business owners and those with disabilities.  If online spaces and social software, like Facebook and Second Life, are becoming new hubs of interaction and commerce, we would think the goals of the ADA should resonate in cyberspace as well.  And if the ADA applies online, I would hope it might apply to game settings as well.  Actually, in my forthcoming book, Virtual Justice, I've used an ADA case, Martin v. PGA Tour, to explore the sometimes problematic relationship between the rules of competitive games and the ADA's requirements.  In that case, the Supreme Court decided that the golfer Casey Martin was entitled by the ADA to use a golf cart to ride between holes in the PGA Tour.

But if the ADA can be applied to some games, how necessary is it in today's MMORPG context?  Newton's Note, above, concludes that the ADA really ought, as a matter of policy, to apply to virtual worlds, even if the current statute and doctrine do not extend that far.  However, an editorial on AbleGamers, a website "dedicated to the disabled gamer," called the dismissal of Stern's suit good news.  Apparently, the author, Mark Barlet, felt the suit would have a chilling effect on the existing level of cooperation between the disabled and developers in the game industry.  The argument, I take it, is that the informal social networks are doing better than the law could do. 

Perhaps, in the incredibly fluid context of networked entertainment software, avoiding the rigidity and expense of regulations and lawsuits might be the right call?  I don't know. What do you think?

Comments

[John Carter McKnight]

1.

I have to agree with your conclusion - it'd seem that a policy of allowing/encouraging third party UI mods for access would be the easiest and most equitable solution.

[thoreau]

2.

What would happen if Stern lived in China and played EQ2 on a European server?

[greglas]

3.

So, hypothetically, Stern would be a Chinese citizen suing a U.S. company based on his inability to access a site based in Europe? That would be tricky, wouldn't it?

I doubt a U.S. court would take jurisdiction over that claim, but I imagine if the EU anti-discrimination laws apply to websites, they would apply to U.S. companies doing business in Europe.

[abercrombie milano]

4.

i don't really think so.