Legal requirements for video game accessibility in the USA

Question

The USA has several laws regarding accessibility of resources, both physical and electronic, with regards to persons with disabilities. For this reason, popular operating systems such as Windows, OSX, and Android all have settings to help people who are hard of hearing, have poor vision, color blindness, inability to press certain key combinations, or another disability relevant to computing. However, I am specifically interested in how these laws apply to video games under U.S. law.

The Americans with Disabilities Act of 1990 and Communications and Video Accessibility Act of 2010 are two examples that both help to ensure that persons with disabilities have access to communications systems and software (this question is not limited to the scope of those two laws, they are simply prominent examples). However, I have had a difficult time finding out exactly what this means and what means are used to determine if a particular piece of software must abide by the terms of the laws. The searching I have done has resulted in either information locked behind paywalls (e.g. papers in journals) or walls of text of legalese.

For example, I can gather that the PlayStation 4 itself (hardware plus operating system/shell) are now required to take measures to be accessible. This appears to be primarily because the system does more than simply play games: one can use it to browse the internet, play music, stream TV shows and movies, etc. It is, in effect, an appliance that can not only play games but also be used for general content consumption.

However, common sense would tell me that games designed for PlayStation VR would not be required to take measures to be accessible to the vision-impaired. That is the issue I have: common sense and intuition tells me this, not a law or a summary of the law written for laymen. I am not sure what specific legal test applies to software in this case.

The same applies to PC video games, and some PC software clearly must be accessible else disabled people be left behind in the digital age. Again, common sense tells me that a web browser or word processor must be accessible, but Skyrim might not: however, I am not sure what the law has to say about this.

What got me thinking about this was a reddit thread about Factorio. I am not asking if the laws apply to the scenario in that thread, I am asking what criteria does U.S. law have to say about video games sold or distributed in the United States' jurisdiction?

How would I, as a legal layman, be able to tell with reasonable certainty if or how accessibility laws in the USA apply to video games or other software designed purely for entertainment purposes?

Answer 1

Simple. They don't.

The ADA governs local and state governments, and physical places normally open to the public. Unless your software is designed for either of those settings, the ADA has nothing to say about it.

The Communications Act of 1934 (even as amended) governs telecom services, broadcasters, manufacturers, etc. It doesn't regulate most software...only certain software embedded into communication devices and/or designed to be used for communications. The PS4 may fall under the new rules, if it has chat features built in. The games, however, don't; if a program (or the hardware it runs on) is not itself designed for communication, the Communications Act has nothing to say about it.

OK, it does have a tiny bit to say...

47 USC §617(i):

(i) Customized equipment or services

The provisions of this section [regarding advanced communication services] shall not apply to customized equipment or services that are not offered directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

You're not selling communication services or equipment. You are selling a game, which incidentally provides communication services via a client customized for the game, and are almost certainly not marketing it as a chat client. This appears to be "customized equipment or services not offered directly to the public", which would make the game exempt under §617(i). Even without a waiver, the requirements of §617 don't seem to apply.

As most general-use software is not designed to provide communication services, and no other law i'm aware of (other than copyright law, of course) covers it, it is basically unregulated. Even web browsers^* and word processors are not required to be accessible, let alone Skyrim.

^{*One caveat: If a mobile phone maker or wireless service provider includes a web browser in a phone, it must ensure that the browser is accessible and usable by blind people. This requirement is imposed on the manufacturer and/or provider, not on web browsers. It can be met by simply not including a browser at all.}

Answer 2

It seems that the Communications and Video Accessibility Act of 2010 (CVAA) does indeed require video games with communication features (voice/chat) to be accessible.

They fall under the Advanced Communications Services (ACS) category.

To dispell any doubt that such games need to comply with the act there is an FCC statement extending the deadline for compliance by the Video Game Software industry for the CVAA.

As for what this means in games, the guidance issued by the FCC indicates that hardware manufacturers need to make both hardware, embedded software, and all 3rd party software (i.e games with chat/voice features) to be accessible.

Service providers must ensure that the ACS they provide, including the underlying components of their ACS, such as the hardware or software applications they provide, are accessible to individuals with disabilities.

As to how to do this:

Equipment manufacturers and service providers may build accessibility into their products and services or rely on accessibility solutions provided by other companies that are not built into their products and services.

Note that 3rd party accessibility solutions must come at a nominal cost to the end consumer

The FCC does state that these are requirements only insofar as they are achievable.

When accessibility is not achievable, equipment manufacturers and service providers must make their products and services compatible with devices or specialized equipment (such as refreshable Braille displays, visual signaling devices, and magnifiers) commonly used by individuals with disabilities to achieve accessibility, unless such compatibility is not achievable.

What does this mean for VR games?

Well for most games this is a ridiculous requirement, since it may be commercially unviable to develop accessibility into games where such communication features are only minor aspects to the wider gaming experience. (e.g racing games with chat features need to be accessible to the blind? Thats definitely unreasonable)

In practice either such developers for such games will ignore the requirements on the chance no one bothers to report them to the FCC for something so superfluous, or this causes decelopers to agree to some type of chat/voice call programming standard to make all chats/voice calls easily read by accessibility software.