November 27, 2021

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Fake Reddit post starts serious debate about video game accessibility.

9 min read

The subreddit r/legaladvice is supposed to be Reddit’s space to ask simple legal questions. That’s why so many of the threads revolve around subjects like taxes, housing, employment, or family law—common issues where the legal framework has gradually developed over a long period of time. But every once in a while, somebody posts a legal question that energizes the Reddit community with its seeming pathos and originality.

That was the case recently when a user going by the name poelegalthrowaway00 posted a question describing unique challenges that they faced with the video game Path of Exile, a hugely popular action role-playing game set in the dark fantasy world of Wraeclast. The user wrote:

I can’t use one hand and some fingers on the other after an industrial accident. I do things on the computer using mouse and 3 foot pedals. I play this game called Path of Exile, and in the game you need to refresh 4 potion buffs every 3-8 seconds. I physically can’t press 4 keys every few seconds so I use a macro that automatically does it for me.

The poster described the macro as a workaround to help with their physical disability and claimed, “I literally physically can’t play without it.” The poster alleged that they had been banned by Path of Exile because the video game’s terms of use prohibit the use of automated software or bots to assist with gameplay. Moreover, the poster said that they had contacted the video game publisher and that the company had denied their request for a special accommodation. The question posed to the r/legaladvice community, then, was whether the poster could bring a successful legal case under relevant disability law.

According to a later update from the user, this legal question received nearly 100,000 views and thousands of responses across multiple subreddits. No doubt part of the post’s virality comes from the popularity of Path of Exile, which earlier this year marked a record of 265,250 people playing simultaneously. The game itself is free to use, but users can make in-game purchases for extras like body armor skins. The poster claimed that the ban meant they had effectively lost hundreds of dollars from the microtransaction expenses attached to the account. Lots of Redditors were adamant that the poster absolutely had a case under the Americans With Disabilities Act and that the poster should consult a lawyer to sue on their behalf.

On behalf of Slate, I reached out to the poster of the question to learn more about that person’s experience and ask a few questions. The next day, the poster sent a strange reply: “Sorry, was fake. Thanks for attempting to do your due diligence instead of immediately reporting on it though.” The same Reddit account also published a new post in the r/pathofexile subreddit where they recanted the entire story. “I am an educator and did this as a demonstration to my class on how easy it is to manipulate public opinion and discourse through social media,” the poster wrote. “Path of Exile was chosen as a subject because most of my students are familiar with gaming, and it’s a relatively harmless area for this exercise, relative to something like politics.”

It’s fair to say that a lot of Redditors thought the poster should exile themselves. “On behalf of everyone who has a loved one with a disability—fuck you,” wrote the user Bex_GGG, in a response that was upvoted hundreds of times. Others asked the original poster to substantiate their claim of being an educator because they were doubtful that a prank like this would pass any university’s ethics committee. A few people thought that the poster should be sued by Grinding Gear Games, the publisher of Path of Exile, for the false claims.

Even after the original poster said the story was fake, a lot of Redditors commented that the issue remained important to them. “I am disabled. PoE is terrible re: accessibility, particularly w/r/t colourblindness, RSIs [repetitive strain injury], and inconsistent audio cuing,” said the user pngb, who argued that “disability accommodations could be prioritized.” Fredrick Brennan, the founder of 8chan and one of the subjects of the HBO documentary Q: Into the Storm, was born with the condition osteogenesis imperfecta, also known as brittle bone disease. Brennan told me in an email that he remembers being physically unable to play a lot of the games when the Nintendo Wii came out—something others experienced as well, in addition to more recent problems with the Switch. “It is indeed the case that not only video games, but a lot of software, is needlessly designed in such a way that makes it difficult for disabled people to play,” Brennan wrote.

One of the ironies of the poster’s false claims is that it overlaps with an actual theme of disability law discourse. Doron Dorfman of Syracuse University College of Law argues that “Fear of the Disability Con” has inspired a moral panic. According to Dorfman, there is a negative stereotype about people who are faking disabilities and abusing the law—for example, disingenuously claiming disabled parking spots, applying for public benefits, or requesting special academic accommodations—and this stigma serves to erode the overall public legitimacy of those rights.

It’s worthwhile, then, to consider an alternate fact pattern in which the original poster wasn’t conning everybody. Under the circumstances that were described on r/legaladvice, could the poster have had a case? The answer is: It’s complicated, and part of the reason for the complexity is that American law in this area has become so outdated. “We had our last golden era of legislation in the 1990s, and it was all right before the commercial internet became a serious concern,” said Blake Reid, a professor of technology policy and disability law at the University of Colorado Boulder. Since then, Congress has become more gridlocked, and passing new legislation has become more difficult. That has left courts with having to interpret how a law from 1990 applies to the online world.

First, the status quo: The Americans With Disabilities Act of 1990 has been the subject of numerous lawsuits involving physical barriers to access. Accommodations such as wheelchair ramps are required by law in what the text of the ADA calls a “place of public accommodation.” By now, it’s obvious that this definition broadly includes places like grocery stores, restaurants, university campuses, and transportation hubs.

But it’s less clear how the ADA’s concept of a “place of public accommodation” applies to cyberspace. In 2016, Guillermo Robles, a blind man, sued Domino’s Pizza after he was allegedly unable to order pizza from the Domino’s website or mobile app using screen-reading software. The district court dismissed Robles’ lawsuit and noted that the U.S. Department of Justice had failed to provide helpful guidance on the subject of web content accessibility. Robles appealed, and the U.S. 9th Circuit Court of Appeals ruled that Robles could continue to bring his lawsuit forward, writing that “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” Domino’s appealed, and the U.S. Supreme Court declined to hear the case, so the 9th Circuit’s Domino’s decision remains in place, at least for now. Some commentators think upcoming DOJ guidance from the Biden administration is likely to strengthen the 9th Circuit’s conclusion.

In some ways, the use of macros in video games to accommodate a disability parallels the Oscar Pistorius prosthetic fairness debate.

The lack of clarity when it comes to accessibility law and commercial websites is even more pronounced in the context of video games. The 9th Circuit ruled in the 2011 case of Stern v. Sony Corp. of America that Sony’s video games were not considered a “place of public accommodation” subject to the ADA because the video game itself was not connected to an actual physical place. The Stern ruling, however, was an unpublished opinion, meaning it’s not considered to have precedential value. Other appellate courts could reach different results.

Furthermore, the Federal Communications Commission has enacted extensive rules about advanced communication services generally, including video games. But those FCC rules are limited to the communications functionality of video games—such as the ability to send instant messages with other players—and do not necessarily govern the key-pushing action that the Reddit poster referenced in their question.

To muddy the waters further, the rise of competitive video games and esports could eventually require courts to revisit a principle from an early ADA case about a physical sport. Back in 2001, the Supreme Court decided the case of Casey Martin, a professional golfer with a degenerative circulatory disorder that prevented him from walking the entire 18 holes of the golf course. Martin sued the PGA Tour with the request to use a golf cart to accommodate his disability. The Supreme Court ruled in Martin’s favor, and the majority opinion noted that Martin’s use of a golf cart rather than walking was permissible because—and this is key—use of the golf cart does not “fundamentally alter the nature” of the game of golf.

Consider how the Supreme Court’s fundamental alteration standard might apply to a video game rather than golf. Does it “fundamentally alter” the video game if users can use automated software to push a bunch of computer keys in rapid sequence rather than using their fingers? The answer, of course, is highly dependent upon the context of the video game. For a game like Path of Exile, where players explore a fantasy continent and the macro is used for the ordinary chore of refreshing potion supply, a reasonable person might say that using an automated tool is acceptable because that’s not a fundamental part of the game. But for a fighting video game like Super Smash Bros., where the game rewards the human operator’s quick reflexes and beating the opponent with fast fingers, those same automated tools could be a much bigger deal.

In some ways, the use of macros in video games to accommodate a disability parallels the Oscar Pistorius prosthetic fairness debate. Before he was convicted for the gruesome killing of his girlfriend, Pistorius was a Paralympic running champion. He also competed in the Olympics, which many people considered remarkable, since he is a double amputee below both knees. But for several years, critics argued fervently against Pistorius’ eligibility to compete because the athlete’s prosthetic running blades were slightly longer than a runner’s biological leg and foot, and this arguably gave him an unfair advantage.

Getting back to the Reddit poster’s hypothetical set of facts: Assuming the story were true, could that person successfully sue the video game publisher for violating the ADA? “It’s impossible to say,” wrote Thomas Reddin, a partner at the international law firm of Norton Rose Fulbright. The fact that Path of Exile’s terms of use banned automated software like this macro would not necessarily serve to shield the video game provider from liability. Reddin noted that a restaurant in the physical world can post a policy saying, “No animals.” But that policy would be trumped by the ADA if a blind patron required a guide dog to frequent the restaurant.

Even if the law isn’t completely settled when it comes to accessibility in video games, it probably makes sense for video game publishers to take proactive steps in this area. “From a business perspective, making a video game more accessible to a wider audience and more potential customers would lessen any risk, and increase the market for the game, regardless of the court assessing whether the legal standard applies,” said Reddin in an email.

If there is a takeaway from the whole debate surrounding this question on r/legaladvice, it might simply be that internet commentators should use a lot more caveats when they share their opinions. Before the poster said it was a hoax, the original Reddit post and its related threads were chock-full of people chiming in to say that the poster absolutely did or did not have a disability law case. But while the Reddit commentators expressed very strong opinions on the matter, the trained lawyers tended to give the legal equivalent of a ¯_(ツ)_/¯. As a fake Alexander Pope once said: Fools rush in where lawyers fear to tread.

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