A Los Angeles judge has refused to apply disability law to the virtual gaming world, dismissing the case of a vision-impaired gamer who claimed Sony Corp. illegally denied him full access to its products.

Andrew Stern does not have a claim against Sony under the Americans With Disabilities Act because he failed to allege the required “nexus” between its online role-playing games and “an actual physical place,” U.S. District Judge Percy Anderson said in his opinion.

"To hold otherwise," he concluded, "would create potential liability under the ADA for manufacturers of all manner of products if those manufacturers failed to make available auxiliary aids allowing the entire panoply of individuals with disabilities the full enjoyment of their products."

Describing Stern's theory of liability as “legally deficient,” Anderson granted Sony's motion to dismiss with prejudice, which means Stern cannot amend his complaint.

The ADA bars owners of “places of public accommodation” from denying the disabled the “full and equal enjoyment” of their goods and services. Stern alleged that Sony violated the law by refusing to add visual and auditory “cues” which would help him navigate games.

Since he is unable to fully enjoy the games, he argued, he has been deterred from attending conventions that Sony organizes for its gamers. “There can be no greater 'connection between the good or service complained of and an actual physical place' than Events that revolve completely around such goods or services,” he said in a brief.

But courts have generally found that the ADA applies only to “bricks-and-mortar” establishments. And Anderson declined Stern's invitation to extend it into cyberspace.

“Plaintiff does not contend that he has ever been denied access to these conventions,” the judge noted, and “there is no allegation, let alone a plausible one, that Sony is using the video games to 'screen out' individuals with [ ] disabilities from 'fully and equally enjoying' the conventions it hosts.”

Anderson also distinguished the case from one in which a San Francisco judge held that the Target discount store chain could be sued under the ADA for failing to make its website accessible to the blind. Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946 (2006).

“Nor has the alleged inaccessibility of Sony’s products denied Plaintiff access to the conventions in a similar manner as the inaccessible website in Nat’l Fed’n of the Blind was alleged to have deprived the visually impaired full and equal access to Target’s physical stores,” he said.

Unlike other MMORPGs (Massively multiplayer online role-playing games) like World of Warcraft and Terraformers, Sony’s games (EverQuest, for example) don’t include accessibility features such as a GPS-like mechanism that gives an auditory description of the environment, a high-contrast 3D mode, and voice feedback.

Sony argued in the motion to dismiss that just as Barnes & Noble is not required to stock a Braille version of every book it sells, video game manufacturers should not have to adapt their products for the disabled. Anderson agreed, saying Stern

does not seek an auxiliary aid or service to foster effective communication at a place of public accommodation such as Sony’s conventions, or to take full advantage of the goods, services, and privileges available at the conventions, but to fully enjoy the video games, which as the Court has already concluded, are not sufficiently connected to a place of public accommodation.

Stern could still pursue a disability rights claim under California's Unruh Act in state court but he is likely to run into the same “bricks-and-mortar” problem. A Los Angeles judge recently ruled Miley Cyrus was not a “business establishment,” as required by the Unruh Act, in dismissing a case against the teen idol for discriminating against Asians by slanting her eyes in a photo.

By Matthew Heller
2/14/09