Outside of D.C., there are few attorneys who understand cyberspace law and internet law and how it affects the legal system, as our laws are just now presenting problems in terms of addressing how to prosecute and defend cybercrimes. I saw my chance to break into this field at the very bottom when the Pokemon Go craze started.
I was on my couch during the week of its initial launch, and I printed every article I could find out about it, ranging from what it was to the civil and criminal behaviors taking place as a result of kids, teens, and adults participating in it. I thought this would be an excellent opportunity to make known, to as many people as possible, the serious legal ramifications of diving into augmented reality and having such a popular game go viral as it has.
I then spent 3 whole days reviewing, researching, and drafting my article and decided to do something that no other attorney or fan has yet to do: to fully dive in and address all the potential legal claims that could be brought against the players and the developers themselves.
What are the latest legal updates with Pokemon Go?
Currently, as a result of both the popularity and annoyance with the craze, there are two pending class action lawsuits in federal court.
The first class-action lawsuit over Pokemon Go was brought by Jeffrey Marder of New Jersey and filed in federal court in California back around the beginning of August, claiming the developers have created a public nuisance and caused people to trespass on private property. The argument is that the developers have established these Pokestops and lure spots on or near private property without the consent of private property owners.
The second was brought three weeks ago by a Michigan couple. As a result of players trampling their landscaping, looking through their windows, and yelling obscenities at them, this couple has filed a class-action lawsuit claiming the developers have made millions while ruining the quality of life for many private citizens.
The plaintiffs are suing all three companies in federal court out in California.
Analyzing the merits
The future of Pokemon Go legal claims hinges on where liability rests. I broke down the liability issues in an article for the Ohio State Bar Association titled “Gotta catch…a lawsuit?”:
Clearly, a person or player who trespasses on another’s property is guilty of criminal trespass, regardless of his or her intent. However, should there be a defense of “but I was playing Pokémon Go?”
• Property owners
The most troubling issue of course is that property owners clearly have not given developers express consent to placing these creatures on their property. However, in augmented reality or cyberspace, do property owners even have a property right claim where an augmented world has been placed over a Google Map program? Is it the same as using Google Maps, Apple Maps, or any other GPS map program in the real world? Does owning property in the real world extend to ownership in an augmented world, where GPS essentially links real world places into the augmented world?
While the developers have expressly disclaimed any and all liability in their initial login disclaimers, it is clear that isn’t stopping many people. The fine print doesn’t seem to be enough. Why shouldn’t Nintendo and Niantic, Inc. be held responsible for intentionally placing augmented creatures on another individual’s property without that owner’s permission? To play devil’s advocate, is simply downloading the game and agreeing to the terms of service a contract or implied consent for the developers to constantly update its Poke-database, which may include the possibility of creatures and people ending up on your property? But, isn’t this the very definition of trespass, or at least cyber-trespass? I know individual states who have enacted cyber-crime statutes, would agree in the affirmative. However, at the end of the day, Courts have a new issue before them on whether augmented reality or cyberspace has caught up to our modern day laws? While it is still complex, there is no reason why this Poke-world shouldn’t extend to our modern day rules of trespass. It clearly fits the elements and definition.
I was able to expand upon the user’s responsibilities in an interview with Dayton’s Fox News station:
AR games take a video game reality and place it within our real world. Games like Pokemon Go utilize your phone’s GPS. As you walk around your neighborhood, you may find the game placing one of these Pokemon in your actual backyard.
With Pokemon popping up all over the map, it’s forcing users to get out and search for the creatures. The desire to catch all the Pokemon, has some users venturing onto other people’s property to catch the critters. The firm does not believe Pokemon Go is an excuse for violating someone’s personal property. While the violation was not intended, it is still trespassing.
Rossow says the company does have a disclaimer that users have to accept, but he admits most people ignore it, and click accept.
What does the crystal Pokeball hold?
I discussed the future of AR-related legal matters for an Above the Law podcast with Joe Patrice and Elie Mystal. Titled “Pokémon’s Evolving Legal Landscape,” the description states, Niantic is already taking steps to address some of the complaints against its creation:
“It’s worth noting that technology moves fast, and since recording this episode, Niantic has released updates via Pokemon Go that have begun to address how both players and businesses can ‘opt out’ and ‘opt into’ the game, along with addressing some safety concerns with more interactive disclaimers.”
And at the end of a Q&A with the Dayton Daily News, I was asked about the future of augmented reality games:
It seems the game’s global success will definitely spur inventors and competitors to play catch-up. Before we know it, there will be Legend of Zelda Go, Game of Thrones Go, Walking Dead Go, and anything else people can take from our television shows, movies and games.
Yet, the same issues will remain until legislators and courts address the grey areas in that our laws have not yet caught up to with cyberspace, or in this case, augmented reality. Hackers will continue hacking applications of this type to exploit the vulnerabilities AR presents. People will continue questioning how this app affects user’s private data, especially since it’s connected to Gmail accounts, IP addresses, and GPS-enabled phones. Our streets, homes, businesses and public places will continue to be a hub for criminal activity and injuries.
Lastly, what happens when the First Amendment right to create starts to interfere with the safety and welfare of others? I recently had an interesting discussion with a well-respected colleague who believes that the developers have a First Amendment right to associate intangible concepts with private property. We both agree there will be numerous lawsuits to come testing that theory out.
And indeed, we will be watching to see what becomes of these two particular suits that have been filed.