Virtually enabled: how Title III of the Americans with Disabilities Act might be applied to online virtual worlds.

AuthorNewton, Joshua
  1. INTRODUCTION II. VIRTUAL WORLDS, VIRTUAL LIVES A. Characteristics of Virtual Worlds B. Virtual Worlds' Benefits to People with Disabilities C. Virtual Worlds' Obstacles for People with Disabilities D. Options to Overcome the Obstacles III. THE AMERICANS WITH DISABILITIES ACT AND THE INTERNET A. The First, Second, and Seventh Circuits: Places of Public Accommodation Need not Be Physical Structures B. The Third, Sixth, Ninth, and Eleventh Circuits: The Nexus Test C. The Americans with Disabilities Act and Web Sites IV. BEYOND THE NEXUS TEST: RECENT ARGUMENTS FOR THE AMERICANS WITH DISABILITIES ACT'S APPLICABILITY TO THE INTERNET A. "Cyberspace" as a "Place of Public Accommodation" B. The Commerce- and Character-Based Test C. Regulating Virtual Worlds as Platforms V. CONCLUSION I. INTRODUCTION

    In recent years, the Internet has provided new options for individuals suffering from debilitating infirmities to enjoy their lives independently. Much of this has come from online commerce, such as Web sites, like, that sell products or services to people without them ever needing to leave home. However, games like Second Life and World of Warcraft have gone further, creating virtual worlds in which individuals, disabled or not, may enjoy virtual lives, sharing experiences, forming friendships, and starting businesses. For disabled individuals, virtual worlds may mean a life less hindered by physical disability and social interactions without stigma, increasing self-worth and independence.

    However, individuals with severely impaired vision, hearing, or motor abilities may not be able to enjoy the benefits provided by virtual worlds. Since virtual worlds are primarily conveyed through visual media, "low vision" or blind users may find life in these virtual worlds even more prohibitive than their real lives. If not subtitled, conversation in virtual worlds may be impossible, even to those able to read lips. Those lacking the motor or visual capacity to use a mouse effectively can be handicapped if mouse inputs are the only means of interacting with the world.

    To remedy these problems, disabled individuals must rely on accessibility functions and settings in virtual-world programs, or third-party software and hardware, to be able to play or "live" in these virtual worlds. However, providing access to impaired individuals is entirely voluntary for virtual-world developers and is thus inconsistent among these games. Third-party software and hardware may be incompatible with some games, blocked by others as "cheats" that provide users with an unfair advantage, or may be prohibitively expensive.

    Developments in disability-law jurisprudence, such as the recent settlement in National Federation of the Blind v. Target Corp. have provided hope for some in the disability advocacy community that the Americans with Disabilities Act (ADA) may be applied to these virtual worlds. (1) The Target case was the first action applying the ADA to a Web site that survived a motion to dismiss. (2) The plaintiffs were blind individuals who claimed Target's retail Web site discriminated against them by not accommodating the screen-reading software they use to view Web sites. If such suits become more prevalent, then disability advocates hope that Web sites and Internet service providers (ISPs) may soon be forced by law to provide reasonable accessibility measures to their Web sites. If the ADA is applicable to Web sites, then, by extension, it may be applicable to online virtual worlds. Alternatively, even if the ADA is not applicable to Web sites, disability advocates hope that features of virtual worlds analogous to the real world may provide stronger arguments for the application of the ADA to virtual worlds. (3)

    Such optimism may be premature, however, as the decision to hear the case was more of a reflection of the current circuit split over whether "places of public accommodation" under the ADA should include "places" other than physical structures. Moreover, while some features of online virtual worlds make application of the ADA to virtual worlds more apposite than to Web sites, other features, such as their nature as products themselves, may exempt virtual worlds from the requirements of the ADA. If advocates wish to succeed in applying the ADA to virtual worlds, courts will need to be educated about the prevalence and future of online commerce, and persuaded that application of the ADA to virtual worlds is possible as the ADA is currently written.

    This Note attempts to distinguish virtual worlds from Web sites and discusses the potential for overcoming the circuit split by suggesting application of the ADA to virtual worlds independent of its application to Web sites. Section II of this Note discusses virtual worlds and their relevance to people with disabilities. Section III outlines Title III of the ADA and discusses the historical and current split in the federal circuits over the ADA's definition of "places of public accommodation" under Title III. Section IV discusses problems with the application of Title III to virtual worlds and suggests new arguments for its application to virtual worlds. Section V concludes by arguing from the material presented that courts should adopt an interpretation of Title III that looks to the character of a place instead of its physicality.


    Web sites offer access to a multitude of products and services, vast amounts of information, and a global connection unimagined prior to the invention of the World Wide Web. However, Web sites are not immersive and, thus, often provide little experience to the user beyond sitting at a desk in front of a computer. Unlike Web sites, most virtual worlds do not offer products or services, but are often products themselves. (4) Also, unlike Web sites, the experiences virtual worlds provide are immersive and, as a result, virtual worlds can provide virtual lives.

    1. Characteristics of Virtual Worlds

      Virtual worlds are essentially computer games or software that allow the player or user to view and interact with others over the Internet in a persistent three-dimensional environment.

      Some of these worlds may be true to life, representing a suburban neighborhood or an East Coast metropolis, or they may be fantastic, representing a medieval kingdom or a planet in a faraway galaxy. Some worlds, like Second Life, provide the opportunity to experience a multitude of virtual landscapes in a single program.

      In these virtual worlds, the user is represented by an "avatar," a three-dimensional model that inhabits the world and accepts and follows commands inputted by the user. (5) The user is able to personalize an avatar, providing a greater connection to his or her virtual representative. Users interact with the world and with other users through these avatars, and may often communicate through text, voice, or gestures.

      The bond between a user and avatar can be very intimate and personal, so personal that he or she may actually feel the actions that the avatar has been commanded to perform. Mark Dubin, a neuroscientist and former University of Colorado professor, explained this phenomenon, stating, "[y]ou have a representative that is you and responds to you. You move, it moves. You feel like you're there. Literally your brain will show activity typical of what the avatar is doing." (6) Dubin's explanation has some anecdotal support as well. (7) For instance, users of Second Life have gone so far as to create a "virtual ability island," where people with disabilities may perform therapeutic activities that help them overcome difficulties in their real lives. (8)

      The persistence of virtual worlds--virtual-world programs continue to run with or without users, allowing them to store data about users' locations, attributes, inventories, and so on (9)--creates a continuity not only to the virtual world, but also to its virtual inhabitants. As a result of this continuity, users may develop entirely new online personas within the virtual world that change as they change. Indeed, a significant number of virtual-world users prefer their virtual life to their real life. (10)

      Moreover, as a result of the continuity and persistence of these avatars, users can develop real, lasting relationships with other users within the game. The authenticity of these relationships can be demonstrated by the extravagant virtual-world weddings between virtual inhabitants that replace real-world ceremonies, (11) and the real divorces that result from virtual infidelities. (12)

    2. Virtual Worlds' Benefits to People with Disabilities

      The benefits of virtual worlds to the disabled are immense. As previously mentioned, the bond a virtual-world user shares with his or her avatar creates a vicarious motility, so he or she actually feels like acts are being performed through the avatar. Because of this vicarious motility, virtual worlds provide an alternative means for social interaction that closely mimics the real world.

      This alternative interaction grants a social life to people who would otherwise be bound to their home or their bed. In virtual worlds, people with physical disabilities may go out dancing, rock climbing, or fight in the prince's army. Alternatively, they can play games with other people, as superheroes in a super-powered team, or join a raiding party fighting goblins on the outskirts of a virtual town. Second Life even trades virtual currency with real-world currency on a virtual exchange, sells virtual real estate, and allows its users to keep intellectual property rights in virtual property they create in the game. (13) This level of interactivity and persistence allows people with disabilities to start successful businesses making thousands of real dollars a year, allowing them greater independence and increasing self-worth. (14)

      Moreover, a homogeneous appearance of capability among avatars removes or mitigates the stigma of...

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