Abstract

Video game accessibility may not seem of significance to some, and it may sound trivial to anyone who does not play video games. This assumption is false. With the digitalization of our culture, video games are an ever increasing part of our life. They contribute to peer to peer interactions, education, music and the arts. A video game can be created by hundreds of musicians and artists, and they can have production budgets that exceed modern blockbuster films. Inaccessible video games are analogous to movie theaters without closed captioning or accessible facilities. The movement to have accessible video games is small, unorganized and misdirected. Just like the other battles to make society accessible were accomplished through legislation and law, the battle for video game accessibility must be focused toward the law and not the market.


Introduction

Those not familiar with the medium assign little or no value to interactive entertainment, commonly known as video games. Video games can connect people of different ages, races, and religion around the world. Some have a false negative association with the medium due to unfounded news reports usually following a mass shooting. However, empirical evidence suggests that video games can confer great benefits to their users, ranging from increased dexterity for surgeons to digital realms for young people to develop social and interactive skills; and there is great potential in developing this tool for educational and therapeutic purposes. What's more, video games occupy an ever increasing sector of our economic and social world. For better or worse, they have taken the place of traditional activities. Hence lays the need to ensure that this medium, product, or service is provided in an accessible manner. The importance of accessible video game design is rooted in the idea that a significant portion of the population is not excluded from participating in the same activities as their friends and family members. The barriers to accessibility are usually mere oversights that can be remedied with little or no cost, and accessibility features or options do not fundamentally alter the underlying content. To achieve equal access in this industry, a legally binding accessibility standard for video game design ought to be adopted. The following examines that notion.

Accessibility Laws and Regulations in the United States

The Americans with Disabilities Act (ADA), the 21st Century Communications and Video Accessibility Act (CVAA), and similar laws are not entitlements. Their purpose is not to confer a benefit to people with disabilities, but to ensure equal access and opportunity. They are civil rights laws that prohibit discrimination based on disability akin to the Civil Rights Act of 1964's prohibition on discrimination based on sex and race.

The Americans with Disabilities Act

Because "historically, society has tended to isolate and segregate individuals with disabilities," (Americans with Disabilities Act of 1990, § 12101 (a)(2)) the Americans with Disabilities Act and similar laws have been put in place to ensure equal access. Communication barriers along with education, transportation, and architectural barriers are just a few examples of the obstacles that people with disabilities encounter daily. The ADA was signed into law, by President George H.W. Bush in 1990 (Introduction to the ADA, 2014), with the purpose of "[assuring] equality of opportunity [and] full participation" (Americans with Disabilities Act of 1990, §12101 (a)(7)) in modern society.

The ADA ensures equal access through two main mechanisms. The first is by accommodating the individual with disabilities. This can include providing an American Sign Language interpreter for a person who has hearing loss or allowing a service animal into a restaurant regardless of a no pet rule. Generally, an accommodation must be provided "unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations" (Americans with Disabilities Act of 1990, § 12182(b)(2)(A)). An entity may also be exempt from providing the accommodation if it can prove that doing so would be an undue burden because of the cost and difficulty (Americans with Disabilities Act Title III Regulations, 28 C.F.R. § 36.104).

The second mechanism is by designing physical facilities under specific scoping requirements. These Americans with Disabilities Act Accessibility Guidelines state the required number of accessible parking spaces, clear door widths, counter heights, and many other design specifications to ensure equal access. New construction must abide by these standards unless it would be structurally impracticable (Americans with Disabilities Act Title III Regulations, 28 C.F.R. § 36.401(c)). Alterations must follow these standards to the maximum extent feasible (Americans with Disabilities Act Title III Regulations, 28 C.F.R. § 36.402(a)); and existing facilities must remove any architectural barriers to access when it is readily achievable (Americans with Disabilities Act of 1990, 42 U.S.C. § 12182(b)(2)(A)(iv)). "The term readily achievable means easily accomplishable and able to be carried out without much difficulty or expense" (Americans with Disabilities Act of 1990, 42 U.S.C. § 12181(9)).

The mandate for equal access has been interpreted to apply beyond that of physical structures. For example, in an ADA Title III case the court held that " [i]t would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result" (Carparts Distrib. Ctr. v. Auto. Wholesaler's Assoc., 1994). In National Association of the Deaf, et. al., v. Netflix Inc. (2012), the court reasoned that the same principles ought to apply to services provided over the internet.

However, The ADA has not been held to apply to video game design. In Stern v. Sony Corp., et al. (2010), a plaintiff with a learning disability brought a suit claiming that Sony violated Title III by failing "to accommodate his disability by modifying … video games … to provide visual and auditory cues" in a manner to make them accessible to the plaintiff. The Court ruled against the plaintiff, holding that Sony is not a place of public accommodation as a manufacturer of video games. Whether video games are a good is somewhat of a grey area. In fact, software companies have traditionally classified games as a service (Lane, 2012). Ultimately, the difficulty in applying the ADA to the medium is that there exists no direct historical equivalent for comparison.

The 21st Century Communications and Video Accessibility Act

The 21st Century Communications and Video Accessibility Act "follows a string of laws, passed in the 1980s and 1990s that were designed to ensure that telephone and television services would be accessible to all Americans with disabilities, and the … law contains groundbreaking protections to enable people with disabilities to access broadband, digital and mobile innovations — the emerging 21st century technologies for which the act is named" (Twenty-First Century).

Before signing the bill into law on October 8, 2010, President Barrack Obama stated, "The 21st Century Communications and Video Accessibility Act will make it easier for people who are deaf, blind or live with a visual impairment to do what many of us take for granted — from navigating a TV or DVD menu to sending an email on a smart phone. It sets new standards so that Americans with disabilities can take advantage of the technology our economy depends on. These changes are about guaranteeing equal access, equal opportunity, and equal respect for every American" (Remarks by the President, 2010). The laws purpose is to increase the level of participation in the American political and economic system for individuals with disabilities by "increasing the access of persons with disabilities to modern communications" (Guide, n.d.). In other words, the law recognizes the importance of communication technologies and that any accessibility barriers to these technologies impacts citizen participation. An inaccessible sidewalk or door can restrict a person who uses a wheelchair from entering a public library to enjoy the materials within. Much in the same manner, a television program or film without closed captioning can limit a person with hearing loss's ability to understand the contents therein. Whether the barrier is physical or digital, the impact is the same: inaccessible information for individuals with disabilities. In the modern day of technology, access to digital media is essential. It is how we shop, learn, date, work, and play. The importance for an accessible digital world becomes more significant because the digital market is replacing the physical market. A widely known example of this phenomenon is the demise of the print newspaper (Plunkett, 2005).

In sum, the statutes mentioned above were designed to ensure equal and full participation in the American democracy and economy for individuals with disabilities; and the laws apply to every part of life or at least ought to according to their legislative intent (see National Association of the Deaf, et al. v. Netflix, Inc., 2012). For a number of reasons, including the laws' inability to evolve, individuals with disabilities are being left out of the digital world. "In 2009, a study conducted by the FCC revealed that people with disabilities are less likely to use Internet-based communications technologies: 65 percent of Americans have broadband at home, but only 42 percent of Americans with disabilities have these services" (Horrigan, 2010). A failure to adopt or amend these laws to include new technologies would mean that a part of our society would be segregated for individuals with disabilities and would counter the very essence of these laws.

Video Game Laws and Regulations

The bulk of video game regulation deals with censorship, piracy, and addiction. For example, the Digital Millennium Copyright Act prohibits the unlawful copy and dissemination of electronic media, including video games (2014).

The industry's regulation is far more comprehensive in foreign nations. South Korea's Ministry of Culture and Tourism regulates nearly every aspect of the video game industry including censorship and addiction (Harlan, 2010; see also Ministry of Culture, n.d.; see also Lee, 2014). The industry is deeply intertwined with the country's culture and economy, which makes it difficult to both promote and regulate the medium (Woo, 2013).

In the United Kingdom, games containing "strong pornographic content" are classified by the British Board of Film Classification, a governmental agency (British Board of Film Classification — Video Games, n.d.); whereas all other games are rated by the Pan European Game Information system, which is legally enforceable (UK enforces Pegi, 2012).

The United States has a self-regulatory scheme that classifies content into different age groups (Marketing Violent Entertainment, n.d.). After the all too frequent gun massacre case, child protection groups urge legislators to pass laws prohibiting the sale of violent video games; but such laws have been held to violate the First Amendment (Brown v. Entertainment Merchants Association, 2011).

After examining the laws of the nations mentioned above, one will find a complete absence of any accessibility standards for the medium. A lone exception in the United States is the application of the CVAA to the "the communications functions offered via gaming" (Richert, 2012). Gaming industry representatives requested that they be exempt from the CVAA's requirements; but the FCC denied the request after noting "how important gaming has become for social interaction, education, and even the fostering of professional and intimate relationships" (Richert, 2012). The FCC's determination concerns the communication elements of video games and not the design elements.

The Benefits of Gaming

Generalizing and categorizing the entire medium into one group to identify its benefits and why accessibility ought to be a priority is a nearly impossible task. Just as with any other medium, the content and benefits vary. Some games may be purely narrative and may resemble an interactive film, while others may not contain any narrative at all. The purpose of this paper is not to classify gaming as an art form nor is it to identify innate values within specific games; but the following section identifies benefits that some video games may confer upon some individual gamers.

Child Development

The first is the social benefit that a person with a disability may experience through gaming. "A majority of gamers play games with their friends and family members" (Entertainment Software Association, 2014). A video game can allow a person with a physical disability to compete with a non-disabled person. Bonding and making friends are essential parts of a child's development, and the interactions that children can have with their peers through video games can contribute to these developments. Video games have replaced "board games or activities like bowling" (Olson, 2010, p. 180), and the significance of making them accessible to children with disabilities ought to be apparent; especially since children with physical disabilities are generally limited from participating in other competitive activities with their peers. Other than developing self-worth and confidence by besting the peers, multiplayer video games can provide a test site where children can practice a "social give-and-take through [in game] activities" (Olson, 2010, p. 182). In this digital realm, "young people [can] negotiate rules and discover the boundaries of acceptable behavior—such as the point where creative strategies are viewed as crossing the line into cheating or taking unfair advantage" (Olson, 2010, p. 181). What's more, studies suggest that video games can be used to find a "common ground that young people [especially those with learning disabilities] can use to make friends" (Olson, 2010, p. 182). Video games can also "purge negative feelings" and "promote positive moods," teach "leadership skills such as mediation, persuasion, and motivation," and foster creativity (Olson, 2010, p. 182).

Cognitive and Intellectual

Several studies suggest that video games essentially train the mind. For example, a University of Rochester study found that regular gamers displayed substantially greater cognitive skills than non-gamers, and non-gamers cognitive skills increased after regularly playing video games (Bavelier & Green, 2003). Bavelier and Green (2006) conclude:

Video game play has been shown to dramatically enhance visuo-motor skills. In particular, video game players have been shown to possess decreased reaction times, increased hand-eye coordination and augmented manual dexterity. Video game play has also been shown to improve spatial skills such as mental rotation, spatial visualization and the ability to mentally work in three dimensions. In addition, video game play has been shown to enhance numerous aspects of visual attention including the ability to divide and switch attention, the temporal and spatial resolution of visual attention, and the number of objects that can be attended.

The Foundation of American Scientists finds that "video games … can teach higher-order thinking skills such as strategic thinking, interpretative analysis, problem solving, plan formulation and execution, and adaptation to rapid change" (2006, p. 3). A study comparing the laparoscopic skills of surgeons found that those "who had played video games in the past for more than 3 h/wk made 37% fewer errors, were 27% faster, and scored 42% better overall than surgeons who never played video games" (Rosser et. al., 2007, p.84). Gamers have better problem solving and cognitive skills (Chuang& Chen, 2009). Video games can be used as a therapeutic tool for individuals with disabilities to develop certain abilities (Atlantis, Boloudakis, Retalis, & Nikou, 2013). The tools however need to be accessible. For instance, a person with a physical disability may be able to benefit by honing his or her dexterity or reaction time; but the lack of accessibility features, like color blind options, may make it impossible to make use of the video game.

Other Benefits

Curbing pain thresholds (Raudenbush, Koon, Cessna, & McCombs, 2009) and contributing to preventive health care (Primack et. al., 2012) are some other areas where video games can play a role. They can provide an alternative outlet for stress relief (Weber, n.d.), especially for people with disabilities that are unable to participate in physical activities; and promote entrepreneurial behaviors (Beck, 2004) and increase moral awareness (Grizzard, Tamborini, Lewis, Wang, & Prabhu, 2014). Video games can also help a person who becomes disabled later in life retain his or her self-identity by being able to enjoy the same hobby as before the disability. With the proliferation of online video games, video games can be used as a tool to connect to individuals across oceans. These interactions can encourage individuals to learn about new cultures and languages.

Why video game accessibility matters

The arguments to create legally enforceable accessibility standards for video games mirror the arguments to have accessibility standards for restaurants, government buildings, and swimming pools. They range from the economic to the social and cultural. Despite the notion that some might have, gaming is a significant part of our society since the industry rakes in over $60 billion annually (Baker, 2011); and more than one-half of Americans play video games (Entertainment Software Association, 2014).

A substantial portion of the community of people with disabilities may not be able to reap the benefits mentioned earlier because no legally binding accessibility standards exist. Even if the cited benefits did not exist, there is still no justification for the lack of accessibility standards. As mentioned before, the goal of equal access laws are to create a society in which people with disabilities can fully participate. There exists no mandate inherent in civil rights laws that the portions of society that ought to be accessible also be beneficial in some manner or another. Liquor stores are not exempt from having accessible facilities or providing reasonable accommodations.

Developers have a general attitude that "accessibility is a wasted effort, … time-consuming, difficult work just to water down your idea to a lowest common denominator for a tiny minority who wouldn't even want to play games anyway" (Moss, 2014). However, some developers see the economic benefit of trying to reach an already interested segment of consumers rather than trying to appeal to new consumers (Zahand, 2007). What's more, accessibility features do not "dumb down" games, as can be seen by the very complex Dragon Age: Origins, and the recognition it received for being the most accessible game of 2009 (Ablegamers Awards, 2010).

Because the disabled community is so varied, designing goods or services to these populations has not been a priority dictated by market forces historically (see ADA, § 12101 (a)(2); see also Vanderheiden, 1990). "This makes it more difficult to accommodate this population in the overall design process because of the many dimensions which would need to be considered" (Vanderheiden, 1990). Arguing for the need for accessible communication technologies, Simpson (2009) writes, "Market forces will not ensure accessibility since there is no easy-to-profile 'disability consumer' as disparate disabilities may require different forms of access; there is lack of information about disability household/consumer spending; people with disabilities lack the geographic specificity found with other groups." The difficulty of quantifying any impact that making games accessible can have deters developers from implementing accessibility features (Moss, 2014). What's more, there is a need for such features to be uniform, and there is no such guarantee if each individual developer can pick and choose which accessibility features to implement and how to implement them. For example, the Americans with Disability Act Accessibility Guidelines ensure that the restaurant in location X is just as accessible as the restaurant in location Z to ensure that a person with a disability will not have to travel to designated locations to dine at a restaurant. This also ensures that a person with a disability is not relegated to a specific chain of restaurants because that chain is the only one that has a specific accessibility feature. Having a uniform accessibility standard for game design will warrant that a person with a disability will not be limited to a certain genre of games or games from specific developers only. Furthermore, a consumer with a disability will have the peace of mind of knowing that when they purchase a product, a video game, it will be designed with a ground floor of accessibility features. This assurance is important because a consumer cannot return the product after it has been used. In other words, if a person with a disability purchases a video game, opens it, plays it, and learns that some aspect of the game is inaccessible, then that person cannot return that game for a refund and will have to accept the economic loss.

In very rare instances, developers have been benevolent and patched in accessible features after the fact (see Donovan, 2011; see also Yin-Poole, 2011). This approach is neither cost effective nor practical. For example, Infinity Ward, the developer of many popular titles, patched a N0m4d control scheme into Call of Duty 4: Modern Warfare to make it accessible for a pro gamer with a disability of the same name (Donovan, 2011). Creating a control scheme tailored to a specific person's abilities still left a number of gamers with disabilities out in the cold, whereas creating a fully customizable control scheme would have made the game accessible to a wider audience. Adding in or patching accessible features after release are also more costly than designing the game with those features; just as remodeling a building to make it accessible can be more costly. Other than the extra wages that have to be paid to the staff, hefty fees may also be charged by console companies like Sony or Microsoft (see Plunkett, 2012). What's more, the same control scheme was not included in the sequel, Modern Warfare 2, because of administrative oversights (Donovan, 2011).

Just as curb cuts are beneficial to the general public and not exclusively to people with disabilities, some accessible design features can benefit the general gaming population as well (Barlet & Spohn, 2012). An adjustable text or user interface (UI) size can be a benefit to someone with mild or acute vision loss; or it can allow an individual with 20/20 vision to play from a greater distance than he or she ordinarily would. A game with closed captioning can allow a gamer without hearing loss to continue his or her session into the night without distracting the neighbors or roommates. Multiple control schemes or remappable keys can allow a player to tailor the controls to his or her play style. Games in the same genre and with the same mechanics can have different controller configurations across different titles. Because game skill can be dependent on muscle memory, some gamers can be hesitant to try a new game title or even console. Eliminating these barriers can mean greater consumer mobility. Consumer mobility, in this context, refers to consumers' willingness to shift to different consoles and game titles.

It's no surprise that the same legislators that attempt to ban these video games have had no desire to make them accessible to a wider audience (see Makuch, 2014). Ultimately the mandate for accessibility standards must be made on a legislative level. The free speech concerns that plague rating systems would not apply to accessibility standards; because such standards are generally designed to not "fundamentally alter" the content of the underlying product (ADA Title III Regulations, 28 C.F.R. § 35.164). Accessibility standards are by and large flexible and allow for multiple design options or exceptions in cases of undue hardships or impossibility (Department of Justice, 2010).

Video Game Accessibility Now

Two versions of game accessibility guidelines have been developed. A collection of game developers, designers, and accessibility experts have created a free resource to inform developers of how to design video games in an accessible manner simply titled Game Accessibility Guidelines. Ablegamers, a public charity, has created and published a 50 page document titled Includification which has design guidelines to make games accessible for those with physical, visual, cognitive, and hearing disabilities. Both guidelines have ascending levels of accessibility features. For example, a level one accessibility option for a person with hearing loss is closed captioning; whereas, a level two accessibility feature is the ability to change font size or color (Barlet & Spohn, 2012).

In the Includification document, Ablegamers president Mark Barlet abandons the ideal of applying universal design to video games. Barlet (2012) states that because of the complexities of video games and the technologies underlying them, "100% inclusion is not feasible." Rather, he goes on to write:

Our goal is to make gaming as accessible as technology will allow to the widest group of people with disabilities on a game-by-game basis, and to further increase the alternatives available for people who may not be able to play a particular title. In short, we need to work to get every title to have the broadest audience possible and make sure that, for those left out of a particular title, there are other titles waiting for them to play (Barlet & Spohn, 2012).

However, Barlet's goal of designing games in a manner that will allow them to be accessible "to the widest group of people with disabilities" mirrors the founding principle of universal design, which "is the design of products and environments to be usable by all people, to the greatest extent possible…" (Connell et. al., 1997). No item can ever be designed to be accessible by 100% of the population but ought to be designed so it can be used by the greatest portion of the population possible in a cost effective manner. Barlet only abandons universal design in words because the Includification guidelines are a blueprint on how to make video games accessible to a wider audience. The video game industry is in its infancy, so it is of no surprise that the movement to make said industry accessible is also in infancy; which is exemplified by the aim of the accessibility activists. All efforts are aimed at the industry, which is made up of countless corporations with constantly shifting goals and ever changing personnel. The streamlined approach ought to be to seek legislative change because the languages of the laws as now written do not have the means to enforce these guidelines.

Conclusion

Whether or not, the law requires that video games be designed in an accessible manner is something that will eventually be decided in a court of law. It is clear however, that some elements of video games must be made accessible to meet the mandates of the CVAA. The more important question and answer is whether or not the law ought to require that video games be designed in an accessible manner. In a civilized nation that values the equal access and participation of its citizens, the answer is an unequivocal yes. An industry or market has not traditionally created accessible products or services because it is all but impossible to measure the economic benefits of doing so, if they do exist. Video games are enjoyed by a majority of the population. For a person with a disability that is unable to leave his or her home on a regular basis, a video game can be a tool to interact with the outside world, meet new people, and learn about new subjects. Video games pose the same dilemmas as do other technologies for people with disabilities. On the one hand, the technology can create new ways in which a person with a disability can participate or interact in a community, but that same person may be barred from using the technology if it is not designed barrier free.

References


Author note: George M. Powers, Vinh Nguyen, Lex M. Frieden, Southwest ADA Center, TIRR Memorial Hermann.

This research was supported in part by a grant (H133A110027) from the Department of Education's National Institute on Disability and Rehabilitation Research (NIDRR).

Correspondence concerning this article should be addressed to George Powers, Southwest ADA Center, TIRR Memorial Hermann, 1333 Moursund St., Houston, Texas 77030. Contact: George.Powers2@memorialhermann.org

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Copyright (c) 2015 George Powers, Vinh Nguyen, Lex Frieden



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