Virtually Enabled: How Title III of the Americans with Disabilities Act Might Be Applied to Online Virtual Worlds

I. 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 Amazon.com, 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. …