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Users with disabilities access virtual worlds on the 3D internet to run businesses, socialize without stigmas, and learn in new ways.  There’s even a “Virtual Ability” island in Second Life (originally funded by the National Library of Medicine and maintained through private donations) devoted to accessibility for disabled users.  Just like the real world, however, virtual worlds pose access problems for disabled users.  Vision-impaired users struggle with tiny on-screen interface elements, users lacking fine-motor control or use of extremities have trouble with keyboard and mouse controls, and hearing-impaired users are limited in ever-increasing voice communication.  Third-party software and hardware helps, but businesses and educational institutions with virtual world presences could do more to enhance accessibility themselves — and some argue they may be obligated to do so under disability discrimination laws.

The most recent news on this front is a $6 million settlement of a lawsuit between Target and the National Federation of the Blind regarding Target’s website.  The NFB had sued Target arguing that Target’s site was not accessible to visually impaired users.  Anikto — a company providing digital accessibility services — has some excellent analysis of this settlement on its blog:

Although the ADA states that places of public accommodation must be accessible to the disabled, websites are not mentioned as an example of such. The NFB was thus forced to consider not as a physical place, but as a service and benefit offered by Target Corp by way of stores located in California.

[...T]he settlement is ultimately a good leap forward. The fact that the case was heard at all, and that a settlement favorable to the Plaintiff was reached, indicates that web accessibility is becoming more than a frivolous side-topic of nominal interest. Decisions made in state law can hopefully create the leverage necessary to force businesses to evaluate their e-commerce policies.

Although the Target settlement is about a 2D website, not a virtual world, it has clear applicability to 3D spaces.   The argument is that both state law (particularly California’s disability discrimination law) and the Americans with Disabilities Act of 1990 can be applied to compel greater accessibility to web-based services.  Under this theory, educational and enterprise virtual-world users (such as colleges requiring student attendance in virtual-world classrooms and businesses with both “click” and “brick” presences) could also be obligated to make their virtual world builds more accessible to disabled users.

Although specific to games, an interesting article by “Dwarf Priest” regarding World of Warcraft creator Blizzard’s commitment to disabled gamers cites statistics showing that between 5% and 10% of game players have disabilities.  Presumably, the numbers for social virtual worlds would be similar.

This is one area where virtual law could lead more general internet law.  From a practical perspective, a non-technical fact-finder is going to more easily see a 3D virtual classroom with seats, a lectern, and a big screen showing PowerPoint presentations as a “public accommodation” under the ADA or similar state laws than a less obviously analogous 2D website, wiki, or course blog.

Applying disability discrimination laws to electronic resources is controversial, and would represent a major reinterpretation of these laws.  Walter Olson, who maintains (a site chronicling the costs of the U.S. legal system) argues that applying the ADA and similar state laws to electronic resources will stifle innovation and that the move poses a “serious threat to the freedom, spontaneity and continued growth” of the 2D web.  Presumably, Mr. Olson’s argument (set forth before the emergence of virtual worlds) would apply to the 3D internet as well.

This issue is likely to arise more often as more jobs, educational opportunities, and government resources depend on access to electronic resources — both on 2D websites and, particularly, on the emerging 3D internet.

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This edition of Virtually Blind’s Reading Room features an article addressing legal issues associated with virtual item transactions.  The article, Transactions of Virtual Items in Virtual Worlds (.pdf), by Michael Passman, is available here courtesy of the author and the Albany Law Journal of Science & Technology.  Passman is a recent law school graduate who works at Cassiday Schade LLP in Chicago.

Transactions of Virtual Items in Virtual Worlds raises some interesting questions, including key inquiries into the nature of virtual goods.  Passman argues that “transactions in virtual items are not sales of goods, but, rather, licenses of intellectual  property.”  His theory is based partly on an analysis of the virtual items themselves, and partly on user expectation, as derived from interviews with Second Life users.  From Passman’s article:

In the interviews, thirty-six percent of users stated that buyers should expect to receive extra or different features from those the buyers thought they would receive.  In a world where there is no way to tell who a seller really is, or sometimes even to find someone again after an initial meeting, it is not surprising that over one-third of users expected purchased items to be a little different than represented to buyers.

Virtual world users are similarly split on whether or not a buyer has the choice to invoke the Article 2 breach rules in the case of a partial shipment. Fifty-four percent of users expected buyers to be able to cancel the whole deal if they did not receive every item for which they had contracted. Forty-one percent of users did not expect a buyer to have the power to cancel the whole deal under such circumstances.

Passman draws some interesting conclusions from his interviews including, as noted above, that virtual world users expect licenses, not sales.  He also concludes that the standards governing breach of contract should be relaxed for transactions in the virtual world because “buyers” (or licensees) understand that there’s a good chance they’ll not get what they apparently bargained for.

I suspect that this paper will draw some attention, as it takes a fresh — and potentially controversial — stance on virtual item transactions.

Virtually Blind’s Reading Room is here to make virtual law papers, particularly papers that haven’t yet been widely distributed, broadly available to attorneys and scholars interested in virtual law. If you have a paper you’d like to have hosted here, drop me a note.

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MDY Industries has agreed to pay World of Warcraft creator Blizzard $6,000,000 in damages arising from the use of MDY’s game bots in World of Warcraft, pending appeal.  The court formalized this agreement with an Order and Stipulated Judgment (.pdf).  Blizzard prevailed on several key issues at summary judgment earlier this year, setting up this stipulation regarding damages.  Had MDY lost on its damages arguments at trial, MDY could have conceivably ended up owing Blizzard several times this amount.

This judgment does not entirely conclude the matter.  Issues still slated for trial in January include whether MDY’s sales of Glider violated the Digital Millennium Copyright Act and whether MDY’s owner Michael Donnelly can be held personally liable for the $6,000,000 judgment.

Beyond trial, of course, there will almost certainly be an appeal to the 9th Circuit on the issue of liability, which would negate the stipulation, and thus the $6m damages judgment, if MDY prevails.

MDY did not formally concede that Blizzard would have prevailed at trial on all triable issues, but did agree “that given the likelihood that some amount of damages would be awarded, a stipulated judgment for the amount of damages to which Blizzard is entitled to recover [...] is an appropriate method to resolve the issue of damages.”

For the background of this suit, see VB’s complete coverage of MDY v. Blizzard.  Very briefly, Glider is a program that users run along with World of Warcraft. It automates key tasks in World of Warcraft, making it possible to play the game essentially unattended. Glider users can thus both harvest resources and generate high level characters without actually playing. Blizzard claimed that Glider violates Blizzard’s copyright when Glider copies World of Warcraft into the computer’s memory as part of its loading sequence, and prevailed on that claim, among others, earlier this year when the judge decided these issues at summary judgment. The issue of damages was to be tried in January, but this stipulated $6m judgment takes that issue off the table.

From the order:

1. Blizzard shall be entitled to recover the total sum of $6,000,000 as monetary damages for counts I, II and III of its Counterclaims and Third Party Complaint related to the sale of Glider up through and including September 1, 2008.
2. Blizzard shall not be entitled to double or triple recovery for counts I, II and III. That is, Blizzard shall be entitled to receive a total of $6,000,000 in damages for counts I, II and III. However, should liability on any one or two of the counts be reversed on appeal, any one of these counts independently supports the $6,000,000 award.
3. In the event that the Court determines that Michael Donnelly is personally liable, either individually or jointly and severally, under counts I, II, or III, this stipulation shall extend to him.
4. The parties shall submit their disputed and undisputed statements of facts and law related to the DMCA claim on September 10, 2008.
5. Counts V and VII of Blizzard’s Counterclaims and Third Party Complaint alleging trademark infringement and unjust enrichment are hereby dismissed by stipulation of the parties.

Trial on the remaining issues is scheduled for January 8, 2009.

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Second Life creator Linden Lab is apparently in negotiations with in-world production studio and broadcaster over SLCN’s pending trademark registration for the characters “SLCN” for “broadcasting radio and television programs in a virtual environment.”  Linden Lab sought, and has been granted, a 90-day Request for an Extension of Time (.pdf) for Linden Lab to file a “notice of opposition” against the pending application.  SLCN is the in-world production studio that is responsible for programs such as Metanomics, Real Biz in SL, and many others.

Linden Lab says it needs the extension because:

[Linden Lab] needs additional time to investigate the claim.
[Linden Lab] needs additional time to confer with counsel.
[Linden Lab] is engaged in settlement discussions with applicant.

Had Linden Lab not sought the extension of time, the SLCN trademark would have emerged from the period for opposition on September 18.  Now, Linden Lab has until December 17 to file a notice of opposition.

SLCN is represented on the registration application by Thomas C. Wettach of Cohen & Grigsby.  Linden Lab was represented on its request for an extension of time by Bobby A. Ghajar and James R. Cady of Howrey, LLP.

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