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, Sony Corp. says in response to a lawsuit filed by a vision-impaired gamer.

Alexander Stern sued under the Americans With Disabilities Act and California's Unruh Civil Rights Act, which bar owners of “places of public accommodation” or “business establishments” from intentionally discriminating against the disabled. He says Sony violates those laws by refusing to add visual and auditory “cues” that would help him navigate online role-playing games.

But in a motion to dismiss the case, Sony distinguishes between access to goods and services of businesses and the content of those goods and services.

“[N]either the ADA nor the Unruh Act ... purports to dictate to retailers what kinds of products they can or must offer to the public,” the motion says. “The law only requires equal access to those goods or services, in whatever form they are offered to the rest of the public.”

By way of example, it continues,

while Barnes & Noble must ensure that its stores are accessible, and it cannot discriminate against the disabled by refusing to do business with them, it is not required to stock a Braille or large print version or audio tape version of every book or magazine it sells. Blockbuster Video does not have to carry a closed caption version of each DVD in its stores. Theaters do not have to show captioned movies.

Stern describes himself in his complaint 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.

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 argues that requiring it to modify its role-playing games would be a “dramatic expansion” of disability law since no court has previously held that “either the ADA or the Unruh Act applies to products.” Were Stern's legal theory to be accepted,

Sony and all other video game manufacturers would be in an impossible position ... Any change Sony might make to accommodate one person's disability might not be effective for those with the same disability -– or the change could adversely affect those with different disabilities.

A federal judge recently ruled in a case involving a retailer's website that “the purpose of the [ADA] 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.” National Federation of the Blind v. Target Corp., 452 F. Supp. 2d 946 (2006).

But according to Sony, “Stern's claim is significantly different. Stern never claims that Sony's websites were inaccessible, or that Sony has refused him access to Sony's websites, or that he is unable to access the auction or gaming sites.”

The reference to Barnes & Noble borrows from Doe v. Mutual of Omaha, 179 F.3d 557 (1999), a disability law case in which a federal appeals court said judges should not decide “how many Braille books the Borders or Barnes & Noble bookstore chains should stock in each of their stores.”

A hearing on Sony's motion to dismiss is set for Feb. 10 before U.S. District Judge Percy Anderson in Los Angeles.

By Matthew Heller
1/11/10