### Blind Justice

Partially blind gamer Alexander Stern wants Sony to make its games more accessible to him and others like him—and he’s gone to court to force the issue. This raises the question: Exactly what does Sony owe to Alexander Stern (and others like him)?

A similar issue comes up in Chapter 20 of The Big Questions, where Mary the landlord won’t rent to, say, Albanians. Ought we force her to?

In The Big Questions, I make two separate (but closely related) arguments on Mary’s behalf. I was about to write a blog post offering the same arguments on behalf of Sony when I realized that only one of them applies. So I am forced to conclude that I should be a little less sympathetic to Sony than I am to Mary.

My first argument is that Mary never had any moral obligation to rent to anyone in the first place—and if she has no general obligation to rent to anyone, then she can have no specific obligation to rent to Albanians. Likewise, Sony has no moral obligation to provide anyone with video games—and if there is no moral obligation to provide me with a video game then there is no obligation to provide one to Alexander Stern. Fine so far.

But my second argument is that Mary, appearances to the contrary, is actually doing some good for Albanian apartment seekers. By renting rooms to non-Albanians, she takes a little pressure off the housing market, driving down rents and making it easier for Albanians to find apartments elsewhere. Sure, she could be doing even more for them, but she’s already doing more for them than I am, since I don’t rent apartments to anyone at all. How can she be at fault for doing small amounts of good when I’m given a free pass to do no good at all?

Now this second argument is actually a little slippery. When I say Mary is doing the Albanians a small amount of good, you’re entitled to respond “Compared to what?”. Compared to taking her building off the market altogether, she’s surely doing them some good. But what about compared to selling her building to a non-bigot?

Answer: Compared to selling to the non-bigot, Mary is doing no particular good, but she’s doing no particular harm either (except, perhaps, to Albanians with idiosyncratic reasons for preferring that building to all others). No matter who owns the building, it’s going to take, say, ten renters off the housing market and have the same effect on rents elsewhere. So depending on the comparison you want to make, Mary might or might not be doing small amounts of good for Albanians, but at least she’s doing no harm.

Now let’s try applying that second argument to Sony: Alexander Stern is having trouble playing Sony’s video games. But without Sony those video games wouldn’t be there in the first place. According to the argument, those games force down the price of other games, including the ones that Stern can play.

But in this case, the argument is probably wrong. Here’s why: Mary, by running a single apartment building, can’t drive all the Albanian-friendly landlords out of the marketplace. All she can do is drive rents down, which is good for all renters including Albanians. But Sony, by dominating a segment of the video game market, might well drive out some of its blind-friendly competitors—and that’s bad, not good, for Alexander Stern.

The fundamental difference is that an apartment is what economists call a private good—it can be occupied by only a small number of people at a time. A video game, by contrast, has at least some of the characteristics of a public good—once you’ve developed it, there’s no limit to how many can play. This gives Sony the ability to cause damage that Mary can’t.

So although Mary is a contemptible bigot, whereas Sony seems to be making reasonable economic decisions, I think I am forced to conclude that the case against Sony is stronger than the case against Mary. Not strong enough for me to support it, though.

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#### 62 Responses to “Blind Justice”

1. 1 1 Josh W.

Speaking of obligations, I don’t understand how in Europe it is hard to fire someone. How can the state force an employer to pay a worker if the employer doesn’t want the worker’s services anymore?

2. 2 2 Douglas

I agree with your argument, but the problem appears to be when all landlords in the neighborhood start to act like Mary. And you can’t have (or so I suppose) a law that allows one person to refuse to sell to Albanians but prevents a whole neighborhood (or even a city) to sell houses to them.

3. 3 3 Shankar

Prof Landsburg,
Would it be fair to assume that Sony, by being non-blind-friendly, increases the incentives for its competitors to be blind-friendly?
And, that it might encourage those companies which specialize on providing games for people with poor vision.

If that is wrong and if Sony expends resources to make its games more blind-friendly, would that not be a discrimination against those with normal vision?

4. 4 4 MattF

I guess it’s true that Mary’s renting to non-Albanians reduces the overall demand for housing a bit, thereby lowering the price for everyone, but doesn’t it also reduce the supply of housing for Albanians by about the same amount? So, specifically, if Jack is the landlord of the building next door to Mary, he could reason that the apartments in his building are more valuable to Albanians, since they have fewer choices.

5. 5 5 Steve Landsburg

Matt: The general price of housing comes down. Assuming competition among landlords, nobody can charge Albanians more than the general going price. If the going price is $100 and you’re charging the Albanians$110, I’ll offer them apartments for $109, you’ll come back and offer$108, etc. (This assumes that there are at least a few non-Albanian-hating landlords. But it only takes a few.)

6. 6 6 Steve Landsburg

Shankar:

Would it be fair to assume that Sony, by being non-blind-friendly, increases the incentives for its competitors to be blind-friendly?

That’s possible (it’s more or less what happens with Mary, who drives her competitors to offer lower prices to everyone) but there is also the possibility that Sony drives its blind-friendly competitors out of the market.

Regarding your final question, I expect that a mandate to add extra features to these games would primarily impact Sony’s stockholders, not its existing customers. But insofar as the prospect of such mandates stifles the incentive to innovate, yes, this could cause harm to normally sighted gamesters. Whether you want to characterize that harm as “discrimination” is, I think, a matter of linguistic choice.

7. 7 7 jambarama

This model works for a marginal renter or game seller, but what happens when you have a lot of Marys? Game makers create somewhat unique goods (they’d have you believe other games are not substitutes for their games). So perhaps the Sony case be more like a Mary who owned all the apartments with balconies.

8. 8 8 dWj

My inclination is to be more sympathetic to Sony, because they’re being asked to change their product — which is also likely to be a legal defense. The Supreme Court has said (in dicta) that the ADA does not require a shoe store to sell single shoes to amputees. The argument that applies to Mary but not to Sony is about the effect on this consumer who isn’t being accommodated, but there’s another party here.

If the market is competitive, imposing this sort of burden on all video-game makers would allow them to pass much of it along to consumers. If it’s not terribly competitive, though, than (almost) all of the burden would end up on shareholders.

9. 9 9 Sierra Black

Not to be all “everything I need to know I learned in kindergarten” about it, but we seem to have a lot of social rules (and laws) that boil down to: share with the class. You’re not required to bring your favorite toy truck to school, rent an apartment or sell a video game, but if you choose to, you must make it accessible to everyone who wants to play.

10. 10 10 Steve Landsburg

Sierra:

First, don’t apologize for the “everything I need to know…” approach; I’m a great believer that we think most deeply about fairness exactly when we’re teaching our children how to behave.

Next: It seems to me that when a child does show up with a toy and refuses to share it, we tend to tell the other children that this is bad behavior, but you nevertheless must learn to deal with it in some way other than forcing the issue. You can cajole, you can ostracize, you can bargain, but you can’t simply lay claim to what the selfish child refuses to share.

Now we do sometimes empower the *teacher* to enforce sharing. But that raises the issue: Are our lawmakers more closely analogous to our fellow students or to our teachers? I think it’s clearly the former. I’m not sure of this, but maybe this is where we differ.

11. 11 11 Bill

While some favor preventing Mary from refusing to rent to Albanians, we seldom hear anyone argue that an Albanian should be prevented from refusing to rent from Mary if she offers the Albania the rental unit. Why the asymmetry?

12. 12 12 Gavitron

How does Sony drive blind-sensitive competitors out of market? Short-term/Long-term?

13. 13 13 Auros Harman

Bill — the renter is not forced to take the first offer of a rental unit simply because he is the buyer, and has the right to comparison shop. The seller/lessor, of course, has the right, at some point along the way, to say, “If you want me to stop looking for other lessees, give me a non-refundable deposit.” But up to that point, the relationship is similar to a potential purchaser of an apple at the grocery store — as long as you don’t start taking bites out of random specimens, you’re allowed to pick out whichever apple you want, or go to another store.

14. 14 14 Tom Joris

Greetings,

after some minor thinking I thought of this solution :

Game companies should allow licencing to other companies for adding support for blind people if the game company is not interested in doing it themselves.

* $for EA as they can license their product and do not need to pay for blind support *$ for companies that specialize in adding support for blind people
* More games for blind people at a higher cost, but I think that is acceptable ( see Braille books )
* Same price for regular people

T.

15. 15 15 Shankar

Prof Landsburg,
Thanks for responding.
As a layman, I am curious to know if economics teaches how to predict with reasonable degree of certainity, the net effect of incentives working in opposite directions. I find this rather hard to believe because , unlike the problems in math/physics, this seems to involve predicting people’s needs/behaviours.

16. 16 16 Scott Wentland

Excellent post. Though initially, I thought you were going to take another route with the economic logic.

The Sony-Stern problem can be applied to any niche market. Big companies have less incentive to create products for niche markets (whether it’s games for the blind or drugs for rare diseases), given the high fixed costs of development. A ruling in favor of Stern, forcing Sony to develop unprofitable games for a relatively small amount of people could create a host of unintended consequences…like Sony leaving the game development industry altogether.

17. 17 17 Ryan

Its interesting that you don’t mention anything about the 1st amendment. The video game is obviously a creative product, and arguably a work of art. Where as the apartment is a physical space.

18. 18 18 James

There’s a significant difference between these two cases. Shelter is a requirement: video games are a luxury. Mary is refusing people who might wish to rent the apartment simply because of their ethnicity, while Sony simply does not make the kind of products that Mr. Stern wants to buy. Why should Sony be forced to change their product lineup? If Ford doesn’t make the kind of car I want, I can’t sue Ford to force them to make it. And just because Mr. Stern has a disability doesn’t make it right. Can a double amputee sue a pencil company because he can’t use their pencils? Can a man in a wheelchair sue a developer for building a neighborhood full of houses with stairs but no ramps or elevators? It would be one thing if Sony made games for blind people but told Mr. Stern they wouldn’t sell him any. That’s what Mary’s doing–she’s refusing people interested in her product for no good reason. However, just as it’s pointed out that Mary has no obligation to rent her building, Sony has no obligation to make any video games at all, much less to cater to any particular group of people.

And something has been bugging me about this whole thing–how does one make a “video” game for the blind anyway?

19. 19 19 Sony Chiba

(1) There is a greater public interest for Sony to make more affordable games and consoles, and maintain support for older consoles, than there is to make games for the vision-impaired. What moral good is achieved to make games accessible to only the vision-impaired with disposable income?

(2) Video Games do not fall under the umbrella of things deemed critical to one’s quality of life such as housing, health care, library access. There is greater argument for pornography to be made for the visually impaired than there is for video games.

(3) Video Games for the blind already exist.

20. 20 20 Tracey McCartney

Steve: I don’t know whether your greater philosophical question takes this into account, but I am assuming you’re aware that Mary’s refusal to rent to Albanians would violate both the Fair Housing Act and the Civil Rights Act of 1866. “Taking the pressure off the rental market” is not a known defense. :) That is why I’m having such a hard time with your analogy.

21. 21 21 Sam

Your first argument does not logically follow. The argument presented is:

* Mary has no obligation to do A.
* Mary has no obligation to do B.
* Therefore, it cannot be the case that if she does do A, she has an obligation to do B.

You have missed that there can logically be an obligation to do B contingent on doing A.

Substitute in, for example, A = “drive a car” and B = “refrain from drinking heavily”, or A = “own a gun” and B = “learn how to use a gun safely”.

22. 22 22 ryan

Question does Mary base her non-albania prefrence off Peter Falk’s slanderizations of the nation in Tune in Tomorrow?

23. 23 23 Howie

I’m not sure if the analogy fits. Sony is not really discriminating against disabled people. They are more than welcome to purchase the game, but it might not be much fun for them. A better analogy might be if Mary would be willing to rent to disabled people, but not willing to install a wheelchair ramp.

And as far as the price argument goes, it seems that games are generally inelastic goods. All A-list games stay at the same price when they first come out, and really don’t fluctuate much for a year or so. They may go down after that to a Greatest Hits price – then eventually for a bargain bin price. It seems like modest reductions in price don’t have a huge effect on a game’s popularity. And conversely, games that are popular do not go up in price. I guess certain housing markets at times can be seen as inelastic too, but it seems less so than the game market.

And another big difference is that a game is a non-essential good as opposed to housing. It seems that should affect prices as well as the moral questions.

Is there an economic term for things like games or music or movie tickets? Goods with static price and an almost unlimited supply and don’t cost much extra to reproduce regardless of the initial budget to make them in the first place.

24. 24 24 strech

Except a video game is a creative work, and not (even a MMORPG as here) a place of public accommodation. Legally requiring that anyone that makes a creative work make it accessible is farcical, especially works that are primarily visual to the visually impaired.

25. 25 25 jUSTIN

And how then will manufacturers be required to cater to every handicap of potential customers, which can be the only legal alternative? Do the partially blind have less of a right to play video games than the partially deaf have to hear an iPod? Should iPods have a feature that aids the deaf but risks damaging the hearing of a non-deaf customer? Should video games be made so simple and bright that only the partially blind will buy them? In other words, does a minority of customers who something was never intended for have the right to damage the profitability of a business and demand changes when there is no real harm resulting from the incompatibility? I am no great friend to capitalism, but in this case it seems that the prosecution is attempting to capitalize on a handicap.

26. 26 26 strech

If the market is competitive, imposing this sort of burden on all video-game makers would allow them to pass much of it along to consumers. If it’s not terribly competitive, though, than (almost) all of the burden would end up on shareholders.

I’d suspect most of the burden would end up on shareholders, unless it reaches a high level, because video game price points are relatively fixed – mostly 50 for PC/Wii, 60 for 360/PS3 for major titles.

Though requiring these solutions on all games would likely drive up the price on “shovelware” and other games that sell for lower pricepoints than normal, as it could drive those up $5 or so. 27. 27 27 Dave I am a little confused by your characterization of Sony’s product as a public good. Non-rivalrous? Non-excludable? Neither seem to apply. It is quite easy to imagine a niche market to develop games for people of various abilities; in fact, the lawsuit is essentially trying to force Sony to do just that. The fact that such a market isn’t large enough to generate products that satisfy the entertainment needs of the particular ability of this person does not seem to be discrimination, but a simple force in the marketplace. A positive solution would be join as consumers and make the request clearly so the market can adapt; a lawsuit is attempting to change the marketplace artificially. From a non-economic, qualitative perspective, I also see a fundamental difference in a good that provides a basic human need – Mary provides shelter through her buildings – versus one that is purely for entertainment (video games). Discrimination has a significant impact on the basic rights of the populace. 28. 28 28 Danny Wetts So….I’ve been a Type 1 diabetic for over 20 years. I want an Oh Henry bar. No sugar added. No, wait, I want a coffee crisp, and a KitKat, and maybe some Junior Mints, too. No sugar added. In fact, no sugar at all. In fact, I demand a low/no sugar alternative to every edible food product currently on the market. You sell oranges? Make me an orange that’s artificially sweetened. Cater to my every insulin-lovin’ need, please and thank-you, or I’ll sue your collective arses. Of course, I won’t — I’m a realist. I know that there are some things in this world that just aren’t for me. Should children raise hell when they find a ride at the fair that says they’re just too small to ride? Should they demand a replica of that ride, shrunk to fit their standards? Sorry, blind guy, but like Dan the diabetic, you’re going to have to find alternatives. 29. 29 29 gus green (let’s forget the legal defination of blind at this time and focus on blind as in, “it’s dark and I can’t see shit,” kind of blind.) So, I’ll say it. THIS IS NUTS! It’s a *VIDEO* game. It is designed for and assumed to be used by those with some degree of working *VISION.* Otherwise it would be called an AUDIO game. I”m very sorry this person is having trouble but too bad. What’s next? Sue Ford & GM because their cars are not designed to be more “more accessible to the blind drivers”? I don’t want blind people driving at all! 30. 30 30 Demothenes XXI Here’s the overall problem. Stern’s suit has no genuine merit because video games is a visually-oriented form of media by definition. It is not Sony’s fault that Alexander is partially/blind. The product is not marketed for him and people like him; it is marketed for people who have near/full access to the visual spectrum. Should Sony consider creating games for visually-impaired people? Perhaps; Stern represents the possibility for a virgin market. But trying to sue them to do that is only going to make Sony executives do just the opposite of what is desired. There is a certain level of fairness that cannot be legislated by means of a lawsuit. Accessibility suits are meant to bring basic human needs to a common level that both fully-able and handicapped people can take advantage of for a common quality of life. Video games do not qualify for that “quality of life” argument. This is a “free market solution,” not a legislative one. All the legislation in the world will not make a game of dodge-ball any more fair for a child in a wheelchair playing against a child with full use of his or her limbs. This makes as much sense as requiring drive-up ATMs to have braille characters on their keys. Why would a blind person be in a drive-up lane in the first place; blind people can’t drive. There are going to be some things that handicapped people will not be able to do because of the current limits of their disability. Damn me for saying this, but there is a point where you have to ask whether a suit of this nature is being done for the sake of viability or selfishness. A huge part of the allure of video games is the quality of graphic display and visual interaction that is included in the game. In fact, one of the major selling points of a video game is the quality of the graphic presentation. The only way that Stern will be able to appreciate that is if a method is developed to either improve his vision or bypass the damaged part of his visual system. No change to the graphic display of the game will grant him access to the full benefit of owning said game. If anything, if Stern’s suit is successful, all that will happen is that the cost of these games to the consumer will be driven up further to compensate for whatever “forced” changes that will be legislated into the production costs of making video games. Again, Stern would be better served by using the attention he gets from this suit to try to find a free market alternative for sight-impaired computer entertainment. But even then, whatever form that this new brand of computer media will take, it still will not take the place of video game and it cannot. While I am sympathetic to Stern’s cause, this is not the way to resolve the issue because no legislation can improve his ability to access the visual spectrum. 31. 31 31 Nick Fortugno As a game designer, I have to point out that this argument and legal case are ridiculous in the real world. The Mary and Sony analogy is not valid. Mary is choosing to exclude a particular group; Sony is making a product that happens to exclude a particular group because of its design. Sony made no decision to exclude the partially-blind. They made a video game for their market. A video game happens to be a multimedia object, so it requires sight and to a lesser extent hearing. The real danger here is that for every one unique accessibility case, there are countless other unique cases that would make different demands on the product, and that would make design literally impossible. There have to be norms to which one designs to even make something at all, leaving aside that games are aesthetic objects and artistry plays a large part in the perception of value. Of course, some federal group could just decide that certain kinds of accessibility are required, as they do with building codes and public transportation. But it is important to remember that Sony makes luxury goods. This is not an apartment or subway that we could claim someone has an inherent right to or need for. It’s a piece of entertainment. This lawsuit to me is akin to attacking musicians for not making sure their music is deaf-accessible. I’m sorry — if you’re deaf, music is not an entertainment form you can consume in anything approaching a typical use case. But there are other forms of entertainment that deaf people can enjoy, and a market will cater to that if the demand exists. Video games are no different. They require a certain level of sight, and video game developers have no obligation to meet the specific requirements of a very small subset of their potential market. 32. 32 32 John Blackburne I fear your analysis of the consequences of Mary’s choice is incorrect. Her impact on the market for homes for Albanians is to reduce the supply. Assuming demand is unchanged the price, to Albanian tenants, should in theory increase. In practice rental markets are far from perfect, so the effect of one bigoted landlord is likely to be unnoticeable, unless the market is small, or Mary and people like her control a significant part of it. I don’t see that a game being a public good makes a difference. A game purchase is still a contract of sorts, which a buyer can choose or not choose to agree to, much like a tenant or landlord. The main difference is there may be non-trivial costs to Sony to adapt their game(s), but also that the law says that companies must take steps, within reason, to accommodate disabled people. It will be for the court to decide how this applies in virtual environments, and whether what is being asked for is reasonable. 33. 33 33 Mark If Mary doesn’t want to rent to Albanians, she should not get caught being such a bigot. She can certainly find her way around the rules that prevent such arbitrary discrimination (based on her personal convictions), but the law should not aid her cause. Sony, on the other hand is not discriminating at all. They simply are selling what they sell without regard to race, creed, or color. Blind Alex’s complaint not withstanding, Sony is not refusing to sell to him. It is not Sony’s issue to deal with his disadvantage, nor any of the rest of us either. It is nice that some of us do provide for people like Alex, and it is also nice that there are laws constructed so that Alex is not further disadvantaged by public facilities, but the playing field is not level and never will it be for people like Alex. Even in Communist Russia there existed the “haves” and the “have nots.” It sucks to be you Alex. 34. 34 34 Rex Manning By this line of reasoning, diners and restaurants were under no obligation to open and serve food in the first place, and they should therefore be under no obligation to serve black people or other minorities. The problem isn’t just Mary. Because, sure, in a theoretically perfect market where everyone acts rationally, other landlords would seize the opportunity in the Albanian market, and any bigotry on the part of individual landlords would be compensated for by the market. As even a cursory glance at history will reveal, however, this is not how the market works. If you allow individual landlords to discriminate against certain groups, then the most common bigotry will distort the market, and suddenly certain minorities will be confined to slums and homeless shelters. Furthermore, even from a logical standpoint, this line of reasoning is suspect. This argument is essentially: Mary is under no obligation to perform action A Mary is under no obligation to perform action B Therefore, even if Mary does perform action A, she is under no obligation to perform action B. Clearly, though, certain obligations are conditional. A person is under no obligation to drive, nor to refrain from drinking, but a person who drives is under an obligation to refrain from drinking. The argument you’ve posited does nothing to prove that non-discrimination is a conditional obligation of providing certain services. 35. 35 35 Bennett Haselton I think the reason people argue that we obligate business owners to make their businesses disability-friendly (or have renters rent to Albanians), but we don’t obligate random people to set up a disability-friendly (or rent apartments to Albanians), is that to a business owner, their business is already up and running, so the incremental cost to make it disability-friendly (or let in Albanians) is usually much smaller than the incremental cost to a person who doesn’t have a business up yet. In general, it seems consistent with our instincts for justice and with other laws, to impose a small happiness cost on someone if it confers a much larger happiness benefit on someone else. To take an extreme example, if you walked past an accident scene with a cell phone, and you didn’t even make a cell phone call to summon the ambulance, and someone dies because the ambulance didn’t get there in time, I assume you could be sued (and maybe the law even compels you to make that call, I’m not sure). I’m speaking in terms of happiness cost and happiness benefits rather than dollar costs and dollar benefits, because if the dollar benefit to the patron were greater than the dollar cost to the handicapped customer, you might well say “Well why doesn’t the customer just pay the business owner to build a wheelchair ramp?” It may be that the dollar cost is greater than the dollar benefit but the happiness benefit is greater than the happiness cost. (If you take$1000 from a rich person, waste $500 of it on administrative overhead, and give the remaining$500 to a poor person, the happiness benefit is greater than the happiness cost but the dollar cost is greater than the dollar benefit.)

36. 36 36 Doc

If Mary has, say, 20 apartments available, and 20 other apartments available in the city, and 40 renters, 30 of which are Albanians, and Mary refuses to rent to Albanians, the fairness policy of “first come, first served” is done irreparable harm. 10 Albanian families have no recourse at all. Mary won’t rent her apartments to them, and the other 20 apartments are rented to anyone who will pay the rent, Albanian or not. More than likely 5 to none of the 30 Albanians will get an apartment.

37. 37 37 Jesse

I’m mostly curious about the differences in the medium between videogames and other media like books, music and television. Videogames are, by nature, interactive and thus require the input of the user. How do we make interactivity available to the blind?

In the case of television and movies, it’s easy because there is already a script available. But how does this work with videogames? How do you enable the blind to play a game which requires the ability to see a virtual world? How do you program that?

I can understand how text, and menus could be enhanced for the blind, but what about navigating a 3D space? How much would that cost? How long would it take to add in?

38. 38 38 Michael

If you read the article to which you linked, it’s clear that the basis of the lawsuit is that Sony is not even trying to make reasonable accomodations that other game companies have in order to make games accessible to customers with disabilities. To present the question as a false dichotomy between providing full access or none is misleading.

Because Sony, through copyright law, patent law, and other legal fictions enforced only through the action of government, enjoys certain privileges that it would otherwise lack, Sony has a duty back to the citizens of the society from which that government and legal system arise.

Because Mr. Stern is a citizen he has a fundamental right to be *included* in enjoying the products of companies like Sony who benefit from the government’s role as overseer of the “market”.

No one is asking Sony to somehow degrade the quality of their games, but to enhance them with accessibility features that make them playable on some level for a wider group of people.

39. 39 39 Chris

@ Sierra & Steve

It seems to me the kindergarten bit is a chicken and egg problem. We tell children what is good and bad behavior and then when discussing good and bad behavior among ourselves we refer back to what learned as children?

I would strongly disagree that it is when teaching children that we think clearly. Children are at lower levels of intellectual and emotional development.

What happens when a thing (toy) appears “on the scene” (in a classroom)? It induces desire. When the desire is met for some and not others, jealousy ensues. When the appearance is random, we don’t really have clear moral direction and would probably follow along the lines of “that’s life.” But when the appearance can be laid at the feet of a specific person, we say it is “unfair.” What is this “unfairness”? A bunch of moralizing bologna that seeks to make difference on the occurrence of the inducement of jealousy.

I would submit that, as a psychological problem, it is more accurate to class the appearance of a good secondary to human activity as a specific case of the appearance of a good, rather than something qualitatively different. I.e., the healthier way to deal with children would be to address jealousy as a phenomenon rather than create the notion that the absence of jealousy is naturally of the realm of rights rather than the realm of goods. Unfortunately, it is not possible to do this easily in a classroom. The easier thing is for the teacher to fall back on rules and moralizing that placate the little devils.

The case of the child who brings the toy to school for the specific purpose of sowing discontent is a different matter.

Has it occurred to anyone from the “everything I need to know” school that it is entirely unnatural to raise together large numbers of children under a few adult supervisors? This amounts to a large-scale social development experiment. I think it is a failure, albeit a nice 19th German failure with lots of efficiency and social control externalities.

40. 40 40 Bill

Auros Harman, I couldn’t tell from your post whether you were endorsing the idea that landlords, like tenants, have a right to comparison shop, and that the asymmetry I spoke of doesn’t make sense?

41. 41 41 Zach

Bennett: Actually, there is absolutely no duty to render emergency aid in the US. If you walk past an accident without calling an ambulance, you may be uncaring and a jerk, but there’s no legal obligation that you help.* On the other hand, most states generally hold that once you do stop to help, you have an obligation to continue to help to the best of your abilities (because other people are less likely to help once they see that you have done so). So if you started to call an ambulance (leading others to believe that help was on the way) and then hung up and wandered off, that would violate the law in many areas.

* In some jurisdictions, emergency workers and/or medical professionals may have certain duties to render aid, but that’s an exception.

42. 42 42 ZMII

LOL Albanians!

43. 43 43 Hummel

The question is: Is Sony legally required to make its games accessible to disabled people?
I would answer: no, of course not. Sony had nothing to do with the unfortunate fact that Alexander is partially blind. They don’t owe him anything.
But a more interesting question is: Does Sony have an obligation to make their code available to a concern that would make the game accessable to Alexander or someone with a hearing impairment, etc.?

44. 44 44 Steve M.

Property rights…. case closed…

45. 45 45 SteveJ

Josh W (if you’ve come back and found this:

“I don’t understand how in Europe it is hard to fire someone. How can the state force an employer to pay a worker if the employer doesn’t want the worker’s services anymore?”

In Europe, the state interferes with the contract between the employer and the employee. One way it does this is to make certain terms obligatory. They are applied to all employment contracts, regardless of whether they actually appear in the document or not. So for example an employee cannot sign away her right to (for example) paid maternity leave, in return for a higher salary. Andm while an employee can terminate an open-ended employment contract for arbitrary reasons (subject to notice period), an employer cannot. In the UK they can make you redundant if the job no longer needs doing, they can fire you for negligence or malfeasance or incapability. But for instance they can’t terminate the contract just because they’ve found someone else to do the job cheaper.

So the answer to, “how can the state force the employer to pay the worker” is, because the employer and the worker have a contract which (perhaps implicitly according to employment law, rather than explicitly in the text) says that the employer will pay the employee. The employee asks for the contract to be satisfied, and the state enforces this request.

I’d be slightly surprised if there is no state interference in the US with the terms of contracts between employers and employees. Isn’t there a federal minimum wage? Isn’t a contract to commit a criminal offence void? The principle is exactly the same in other countries, but the details of the interference are different.

46. 46 46 Zazi

Steve Landsburg’s gone very quiet… No response to “Mary is under no obligation to perform action A, Mary is under no obligation to perform action B. Therefore, even if Mary does perform action A, she is under no obligation to perform action B.”?

Or any of the other criticisms?

47. 47 47 Zazi
48. 48 48 Mike

I think that economically speaking, an argument for Sony could be reasonably deducted (though I am not convinced it is as clear-cut as many posting here seem to think).

Legally speaking, Sony could be in some trouble. I notice that other posters have said stuff like ‘property rights.. case closed.’ or ‘of course they don’t owe him anything legally.’ These might be your normative judgments, but they represent a fundamental misunderstanding of the law. Sony could very well be held legally responsible to provide disabled people with access to their network.

While under common law property rights Sony owes nothing to Alexander, there have been some landmark laws passed that significantly limit our property rights including the Civil Rights Act of 1964 and oh, say, The AMERICANS WITH DISABILITIES ACT of 1990. Ultimately this case is going to come down to whether or not the PlayStation Network (and all games playable on said network) will be considered a “place of public accommodation” under the ADA. Courts have interpreted some websites as places of public accommodation already (Access Now v. Southwest). I still think Alexander has somewhat of an uphill battle here, as it is mostly a case of first impression, but it is by no means a clear-cut win for Sony as the law has been trending against them.

Again, the outcome of this case will likely have very little bearing on its supposed economic efficiency, but perhaps there are reasons to be economically inefficient. Does anyone want to argue that the Civil Rights Act of 1964 is a bad thing because it’s economically inefficient? There are broader policy concerns at play here, and this could be a big case determining how the internet functions under property law with implications that go well beyond videogames.

49. 49 49 Jack

by calling them “video” games, doesn’t that protect sony from frivolous lawsuits such as this one? it’s not called simply a game, but video implies that you would have to be able to see in order to partake in the game-play.

just a thought

50. 50 50 strech

Again, the outcome of this case will likely have very little bearing on its supposed economic efficiency, but perhaps there are reasons to be economically inefficient. Does anyone want to argue that the Civil Rights Act of 1964 is a bad thing because it’s economically inefficient? There are broader policy concerns at play here, and this could be a big case determining how the internet functions under property law with implications that go well beyond videogames.

Yes, indeed. If a creative work is ruled a “place of public accommodation” and economic inefficiencies are ignored, there will be wide repercussions indeed. I suppose every movie will need to be shown with technology to make it accessible to blind people, every music with technology to make it accessible to deaf people, every book required to be braille, and so on.

It’s not absurd because of property rights, it’s absurd because a video game is not a place of public accommodation. The ADA’s legal justification has almost nothing to do with “fairness” and everything to do with allowing blind and deaf people a reasonable chance to live their lives. It is not the federal government’s job to institute “fairness” on private actors making private speech.

51. 51 51 Robert

Very interesting discussion, obviously not very anchored in the real world though, viz-a-viz laws against discrimination (which is inherently anti-liberal as they force individuals and business owners to act contrary to their own personal beliefs and opinions) and the age old debate of logic vs. morals. But as a logical puzzle it is interesting to ponder.

Logically, would it make sense for Sony to counter sue and claim that Alex Stern is personally accountable for making sure that every copy of the made-for-visually-impaired gamers product sell? Could they sue Alex Stern for not producing these games himself? It seems to me about as logical as the first suit.

It is besides the point of the discussion (I assume) that the vast majority games sold on the Sony platform are produced by non-Sony production companies. But perhaps Alex Stern is suing their failure to provide incentive to these third party producers to produce games for visually impaired gamers? Or perhaps he is pissed of for there being a lack of customization for these games.

Anyone who wished to try playing a video game as a visually impaired person could start by taking of their glasses (or putting some stronger ones on if they have good vision in the first place) and placing the TV/monitor right in the sun with contrast set to minimum. I do believe many games would be unnecessarily difficult to play under those circumstances. One could argue, that Sony is not doing enough to help people customize their gaming experiences (for example we do have sound output control on TVs don’t we?) in the same way that Microsoft has been successfully put to court for their near-domination of the OS market.

It is no secret that many totally blind (as opposed to legally blind) people own TVs. Also, I think you will find that some of them indeed enjoy porn. :-)

52. 52 52 encarnacion

“It’s not absurd because of property rights, it’s absurd because a video game is not a place of public accommodation. The ADA’s legal justification has almost nothing to do with “fairness” and everything to do with allowing blind and deaf people a reasonable chance to live their lives. It is not the federal government’s job to institute “fairness” on private actors making private speech.”
-strech
November 9, 2009 at 7:33 pm

Perhaps video games are not considered a place of public accommodation just this moment, but they may soon be. Some of the most famous games already have more regular players than some network TV shows have viewers. Yet just about all video programming must be closed captioned for the Deaf and Hard of Hearing, including programs made for entertainment more than informative purposes. (source: http://www.fcc.gov/cgb/dro/cctimeline.html) This is an expensive process for each station, as a skilled person must be hired to take down every word uttered and every sound (gunshots, applause, et c.) that those who can hear with their ears would be able to experience. I know of no such accommodation for blind people. However, captioning a video game for Deaf or Blind people becomes a bit more difficult since each gaming session is by nature unique, and is only experienced by the players involved, not every single person registered to play. It is a bit of a conundrum which will have to be sorted in the coming years.

53. 53 53 GrahamD

I have enjoyed today’s blog and the contributors to it. My copy of the Big Questions is still in the post to Australia. Let’s not forget we are talking economics and how to solve and explain why things happen. Remember all human behavior is rational (even though it may appear irrational), we do not assume anything about preferences and Mary and Sony’s behavior is designed to serve a purpose. Its uncovering this, that is the best part. Graham

54. 54 54 Nicholas Knight

Most of the discussion here seems to be based on a very poor understanding of both the ADA (and its application in practice), and the complexity involved in implementing accessibility features.

To start off, the ADA as generally applied never requires a business to invest so much in accessibility that there would be material financial harm. This is why, for example, wheelchair accessibility, which can require very expensive and disruptive design and construction to add to an existing building (but has relatively little cost for a new building or one being substantially remodeled), is almost never imposed “out of the blue”. Further, the inherent nature of a product or service can and does lead to a determination that to provide accessibility features would be *un*reasonable (remember, this is “reasonable accommodation”). Someone brought up music — there are no circumstances under which the law could ever be applied to require that a musician make their music “accessible” to the deaf.

However, the issue here is actually an unbelievable degree of negligence on Sony’s part.

Had they merely paid a little attention in the beginning, there would have been no meaningful cost associated with providing accessibility. Configuration files allowing customization of colors and hooks for screen readers would go an incredibly long way, and be utterly trivial for any competent developer to implement.

Making this more pathetic is that Sony already had experience in these matters. I remember specifically an EverQuest player I knew years ago with MS. His primary means of control on bad days was voice control. Somebody at Sony had taken a little time and implemented hooks to the Windows voice API, and actually put a lot more thought and care into it than I would have ever expected. I even wound up using it some myself, despite not having any sort of disability.

Now they decide they can’t even put in the hooks to let others do the work for them? Color me unimpressed…

55. 55 55 Michael

I am actually astounded that people are making an argument like “property rights” case closed. If it were that simple, Sony would enjoy no privileges such as copyrights, patents, or trademarks on their games. If I own all the computer hardware and software and have obtained a copy of one of their games, my right to use and control my own property cannot be abridged. Therefore I would be allowed to make and *sell* copies of their games.

However, there is a vast network of laws to prevent this act on my part. It is in complete violation of my property rights. This abrogation of my rights is deemed expedient for *social* purposes. There is a higher moral value being served, allegedly.

Therefore, in concordance with that type of reasoning, Sony also is bound to accept certain requirements that prohibit certain acts and obligate others. There is simply no property defense to be made. We have already established that property rights are not absolute.

In this case, because the lawsuit is brought on behalf of a citizen, who has a natural human right to participation in the discourse of our nation (a discourse which includes playing video games), we can reach no other conclusion than one that seeks to balance both the natural right of the citizen to participate in society and the right of Sony to be sovereign with respect to its actions.

Furthermore, a corporation is a legal fiction that enjoys a special status in our economy (it is no mere collection of individuals). As such, the obligations of a corporation go beyond the ordinary. While the government may not reasonably expect private citizens to close caption their video blogs or home movies, we certainly can have laws requiring commerical enterprises to make close captions available on all of their video works.

56. 56 56 Douglas Bennett

In response to a much older post, Mary does not shift the supply curve left by refusing to rent to Albanians. If Mary would never have offered any apartments for rent if it meant she would be forced to rent to Albanians, then by offering apartments to non-Albanians she has increased the supply of apartments. Since these apartments would be perfect substitutes (for non-Albanian renters) for pre-existing apartments, the demand for apartments which allow Albanian occupants would decrease. The important distinction is that Mary, if forced to rent to Albanians, could simply stop renting apartments to anyone and suddenly be rid of her obligation to rent to Albanians.

This point leads to my last response, which is to the post regarding the flaw in the Albanian apartment logic. Both of the examples which you cited exist specifically because of the externalities associated with them. In the apartment example, no such externality is present.

57. 57 57 S.V.

I propose another model here. Suppose that we have I+J apartment seekers, I albanians and J serbians. Mary is serbian, and feels unhappy about renting her apartment to an albanian.

The tenants to be have a utility of 1, when they rent an apartment, and 0 when they have to sleep under the bridge. The landlords get 1 when they rent and 0, when the apartment is closed, except for Mary, who gets 1 when she rent to a Serbian, 0 when the apartment is closed and -Infinity when rents to an Albanian.

Suppose that I+J is also the number of landlords and the number of available apartments. We have a kind of a matching situation here. If it happens for an Albanian to knock on Mary’s door for an apartment, the result is that Mary will refuse an agreement, and the Albanian will sleep under the bridge. But this is not the end of the story. The Albanian can propose an agreement with Darko, a Serbian who rents and apartment from the landlord Ivanovic. The Albanian poposes the following: Come on Darko, if you rent Mary’s apartment and let me rent Ivanovic’s apartment, I can give you half of my rent. Darko will end up with one an a half utility, which is good for him and the Albanian will end up with half utility, which is better than having 0 sleeping under the bridge.

So in the event that an Albanian is allocated to Mary’s door, we have an increase in the Serbian’s rent and a decrease in the Albanian’s rent. So the fact that Mary’s refuse to rent to an albanian benefit the Serbians and hurt the albanians. As the probability of this undesired match is positive, we have an expected loss in the albanian’s welfare.

58. 58 58 Steve Landsburg

S.V.: What you’ve lost sight of is this: If the Albanian is paying more than the surrounding Serbians, then landlords will compete for his business. “I’m renting to a Serbian at $100. You’re currently paying a total of$150. Come take over the Serb’s apartment and I’ll let you have it for $140.” Unless most landlords are like Mary, this competition eventually makes apartments available to everyone at the same price. 59. 59 59 Sierra Black “Now we do sometimes empower the *teacher* to enforce sharing. But that raises the issue: Are our lawmakers more closely analogous to our fellow students or to our teachers? I think it’s clearly the former. I’m not sure of this, but maybe this is where we differ.” This is exactly where we differ. I was seeing the government as being the “teacher” in this situation because they were the third party authority being appealed to by the two parties who cannot agree. Sometimes, as a teacher, I say to the kids, “Don’t come whining to me, work it out!” but if I do get involved, I enforce my sense of fairness – you must share with the class. I think the businesses and individuals largely see the goverment as being in the teacher role because, right or not, the govt does have the power to enforce a standard of fairness. The government is being asked to intervene because of its authority, not because of its wisdom. If they wanted to consult with a peer, they’d go to the media, academia or another business for guidance. Right? 60. 60 60 RL Really, Sierra? So you think our children look to their teachers as their freely chosen representatives? Or you think voters choose Congressmen to be their moral guides and ethical leaders? (If the latter, we’re CLEARLY doing a bad job–just pick up the Washington Post on any given day.) 61. 61 61 Huck In the Albanian scenario Mary has clearly reduced the Albanians’ leverage and buying power. Because they have fewer choices they will pay higher prices, and inversely a customer with more choices pays lower prices. In this scenario the Albanian has been saddled with an inherent limitation. An attentive supplier of apartments will recognize this and increase prices. If he can, just for Albanians, but if he can’t, then he’ll charge something in between the Albanian and non-Albanian price. Either way the rent for all other apartments will increase when Mary refuses Albanians. For he, the other apartment renter, will be providing a extra service, regardless of whether it benefits or is preferred by all his renters. That service being ‘universal renter acceptance’ (or at least Albanian inclusive renter acceptance). Competition may ensue but rent in these places will never drop to Mary’s level, because the product is Mary’s +1. If I have no car then I am at a similar disadvantage regarding where I can shop for groceries compared to those with a car. I will pay more for my groceries because I am buying an extra service, namely ‘convenience.’ If convenience stores could specifically target me as a non-driver they would surely do so because I have few if any other choices. As it is, though, their prices are higher on average than at the Wal-Mart outside the city. Like the non-Albanians the driver can choose at any time to pay the premium of convenience and unlike the non-Albanians even get the benefit of said convenience. Incidentally, this is an actual complaint against Wal-Mart, that it effectively discriminates by its location against the poor, which is probably true but completely stupid. Now, an extra result could then occur if most non-Albanians are secretly as bigoted as Mary and actually prefer Mary’s ‘Albanian-free’ apartments. Then she’s offering an extra benefit just for bigots and perhaps could increase her price. But at the least the non-Albanians’ range of options has increased and that’s a benefit. If they don’t care one way or the other then they can just go against the grain and they’ll necessarily get to live in the cheaper apartment. Stupidly, the only two parties being hurt by Mary are Albanians, reduced leverage, and Mary in exactly the same way, by reducing her customer base. This will of course decrease the amount of rent she is able to ask for. If she sells to a non-bigot Albanians rejoice and non-Albanians lose out big time. Come to think of it this is exactly how your free-trade argument works. It’s Protectionism! Hey!? 62. 62 62 S.V. Let’s do a model based reasoning. In our country we have two kinds of firms, the Shelleys and the Marys. Due to technological constraints, the Shelley firm is only able to produce the x good and the Mary firm can only produces the y good. They both have the same cost of production:$C_S(x)=\frac{x^2}{2}$and$C_M(y)=\frac{y^2}{2}$. We also have two kind of customers, the Franks and the Steins. They have the following utilities:$v_{F}(x,y,t)=\log(1+x+y)+$t,$v_{S}(x,y,t)=\log(1+x)+t$. We have$f_M$firms of the Mary’s type and$1-f_M$firms of the Shelley’s type. And we have$h_S$Stein customers and$1-h_S$Frank customers. Note that$x$and$y$are perfect substitutes for the Frank customer and the Stein customer does not purchase the$y$good. The consequence is that the price of$y$must not be bigger than the price of$x$, otherwise nobody is going to buy$y$. This gives us$p_y \leq p_x$. We suppose the firms are profit maximizers and so we the firm’s supply is:$S_x(p_x,p_y)=(1-f_M) p_x$.$S_y(p_x,p_y)=f_M p_y$. The demand function for the Stein is:$D_S(p_x,p_y)= h_S \frac{1-p_x}{p_x}$, and for Frank we have two cases, the first one, when$p_x>p_y$:$D_F(p_x,p_y)= (1-h_S) \frac{1-p_y}{p_y}$, and the second one, when$p_x=p_y$. In this case, as Frank is indifferent between$x$and$y$, so the demand function will reflect this:$D_F(p_x,p_y)=(1-h_S)(\alpha \frac{1-p_x}{p_x} +(1-\alpha)\frac{1-p_y}{p_y})$, where$\alpha$will be chosen endogenously. Equating supply and demand for goods$x$and$y$we have that: If$h_s+f_m \leq 1$, then$\alpha=\frac{-1 + f_m + h_s}{-1 + h_s}$and the price is$p_x=p_y=0.618034$. If$h_s+f_m >1$, then the price is:$p_x=\frac {h_s – \sqrt {4 h_s – 4 f_m h_s + h_ {s}^2}} {2 (f_m – 1)}$, and$p_y=\frac {-1 +h_s + \sqrt {1 + 4 f_m – 2 h_s – 4 f_m h_s +
h_ {s}^2}} {2 f_m)}$It is a little bit messy, as I can post graphics here, but using these prices to derive the welfare here, we can show that when$h_s+f_m >1$, the partial derivative of the welfare with respect to$f_m$is always negative. This means that we have a lost of welfare in response to an increase of the participation of type Marys firms on the market. Besides, the price$p_x$above is greater than price$p_y\$, so the Steins will end up paying more than the Franks.

In summary:
-Mary firms behavior is not welfare neutral. We have a kind of “maryweigh loss”.
-It does harm the Stein customers.

So the central authority has reasons to avoid this kind of Mary’s behavior.