Virtual worlds are made with bytes not bricks. But in a first-of-its-kind lawsuit against Sony Corp., a vision-impaired gamer is arguing that he has the same right of full access to the virtual world as he does to bricks-and-mortar buildings.

Alexander Stern's complaint accuses Sony of violating the Americans With Disabilities Act and California’s Unruh Civil Rights Act by refusing to add visual and auditory “cues” that would help him navigate his online role-playing games. He describes himself as having “visual disabilities” and “multiple learning disabilities.”

“Due to Sony's failure and refusal to remove disability-related access barriers to the Products[,] Plaintiff has been and continues to be denied equal access to the Products,” the suit says.

Is this guy for real? Yup, and he might be able to convince a court that the virtual world is indeed a “public accommodation” as defined by the ADA, which prohibits businesses from providing the disabled with separate but unequal goods or services.

In a class-action case that accused Target Corp. of disciminating against the blind by failing to embed cues or “tags” in its website, U.S. District Judge Marilyn Patel in San Francisco ruled in 2006 that there was a “nexus” between Target.com and a place of public accommodation since the website serves as a portal to the company’s bricks-and-mortar stores.

“It is clear that the purpose of the statute is broader than mere physical access -– seeking to bar actions or omissions which impair a disabled person’s ‘full enjoyment’ of services or goods of a covered accommodation,” Patel wrote in National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946.

But no federal appeals court has gone that far. And Patel did not address the novel issue raised by Stern's case -- whether the ADA applies to an Internet service that does not have an obvious “nexus” to a physical location.

Unlike other MMORPGs 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 –- despite a $15-a-month membership and Sony’s constant upgrades to its software.

Sony probably could have avoided a fight with Stern by not being so ... tone deaf. Stern, a Los Angeles resident, contends that a letter-writing campaign and actual contact with a flesh-and-blood rep from Sony Online Entertainment failed to move the electronics behemoth to add cues to its games.

“As a result of Sony’s willful refusal to provide Visual Cues in the Products, Plaintiff is unable to fully enjoy the vast amounts of content comprising the Products, by virtue of being unable to locate friends, characters and items across the Gaming Platforms,” Stern alleges.

He also claims he is being robbed of potential profits since full access to games would allow him to trade virtual items with other online gamers that sell in the thousands of dollars in real currency. He is seeking injunctive relief, statutory damages, and punitive damages.

The case is somewhat similar to that of a Pennsylvania attorney who sued the creator of the Second Life virtual world for illegally seizing his “virtual real estate.” But Marc Bragg settled his lawsuit before a judge ruled on whether virtual property rights are enforceable.

As far as disability rights in the virtual world, some courts have found that the ADA requires a bricks-and-mortar operation. Since a website “does not exist in any particular geographic location,” it is not a “place of public accommodation,” a federal judge said in Access Now v. Southwest Airlines,  227 F. Supp. 2d 1312 (2002).

On the other hand, in a case not directly related to the Internet, the 1st U.S. Circuit Court of Appeals stated that

the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theatre, Web site, or other facility … that is open to the public cannot exclude disabled people from entering the facility and, once in, from using the facility in the same way that the nondisabled do. Carparts v. Automotive Wholesaler’s Ass’n, 37 F.3d 12 (1994).

Judge Patel's Target decision may also give Stern some leverage. But it's not clear yet how he can show a nexus between the games he plays and a place of public accomodation.

In his complaint, he offers only vague arguments –- Sony's products are “accommodations offered to the public by Sony;” the products are offered in brick-and-mortar stores; and Sony manages promotional events for those products and those events are public accomodations.

Still, if, as Stern says, the virtual playground is a place of significant human interaction,  perhaps he is moving in the right direction. Bravo to him for venturing into the real world.

By Julie Edgar
11/29/09