By: Madison Jennings,
On July 6, 2016, North America experienced the beginning of a Pokémon craze the likes of which our nation had not seen since the nineties.
The release of Pokémon Go, an augmented reality video game designed to be played on a smart phone, had young and old alike dreaming of becoming Pokémon Masters. In true lawyerly fashion, however, the legal community immediately began to do all it could to ruin the fun. It adjusted its glasses, cleared its throat, and said, “Well, there are a lot of potential issues here, is this really such a good idea?”[1]
To which, of course, the world responded, “Please be quiet—I’m trying to catch a Charizard!”
Augmented Reality (or “AR”) is a gaming feature that inserts digital characters and checkpoints into the physical world, visible only via gaming device.[2] This is a not entirely new, if severely underused, gaming model. Pokémon Go creator Niantic has previously employed AR in its 2012 release titled ‘Ingress’.[3] In Ingress, players join factions and visit real-life monuments, cultural hubs, and other similar public areas which act as in-game ‘portals’ to win points, defeat their enemies, or whatever it is video game nerds do to feel a sense of accomplishment.[4] Pokémon Go follows much the same model.
You begin by downloading the game and creating an avatar, which you can design to look exactly (or nothing at all) like you. Once your character is ready, it will appear on a map and your phone will buzz as three familiar characters pop into view. Players can choose to tap on and attempt to capture either Charmander, Squirtle, or Bulbasaur. Once tapped, the Pokémon will appear on the screen as the app uses the phone’s camera to fill the background will real time images of your surroundings, giving the impression that Squirtle really is in your living room, your bathtub, or wherever else it is you were when you decided to give this Pokémon Go thing a try.
Once you’ve captured your first Pokémon, you’re encouraged to walk around to find more. In the bottom right of your screen, a small box offers silhouettes of nearby critters, enticing you to venture forth and find them.
Of course, to catch Pokémon, you need Pokéballs. To get Pokéballs, you need to find a Pokéstop. Pokéstops are real-world locations given digital properties by the game. Niantic uses the same ‘portals’ from its previous game (Ingress) as Pokéstops.[5] These locations were originally submitted by Ingress players, and can be anything from fountains and memorial benches to historical landmarks and restaurants.[6] You visit Pokéstops to get Pokéballs, you get Pokéballs to catch Pokémon, you catch Pokémon to, well, catch them all! The format is pleasantly simplistic, and imbued with just enough nostalgia for a remarkably popular childhood game for it to be instantly and infinitely more successful than any other mobile game in existence. Pokémon Go shattered the record for downloads in its first week from the Apple App Store.
That’s all very well and good, but where do the legal issues arise? What’s the problem, lawyers?
The problem is that newly developed technology dispersing into the population in such a rapid, uncontrolled way inevitably gives rise to previously unimagined legal issues. Not long after the game’s release, reports starting surfacing of players being lured into secluded areas by in-game treats (Lure Modules designed to attract digital Pokémon and real life trainers) and robbed, car accidents as a result of playing Pokémon Go while driving, and distracted players literally walking off of a cliff while hunting Pokémon.[7] Then, of course, there was the body camera footage of a player distractedly plowing into the rear of a parked police vehicle—he steps out of the car with the game still open on his phone screen, telling officers, “That’s what I get for playing this dumba— game.”[8]
Then, of course, the fascinating question: what are your rights, if there’s a Pokémon, a Pokéstop, or even a Pokémon Gym on your private property?
(Pokémon Gyms, like Pokéstops, are real world locations given digital significance by the game. At gyms, players can battle their Pokémon for a chance to earn some in-game currency.)
Often, gyms are located at churches, which proved to be a problem for a Massachusetts man living in a renovated church.[9]
When Boon Sheridan, of Holyoke, Massachusetts, moved into the former Victorian-style church with his wife, they did not anticipate that at some point dozens of individuals would begin showing up to loiter outside their front door, staring at their phone screens.[10]
Pokémon Go doesn’t typically place in-game locations onto private homes, and it’s fairly obvious that the inclusion of the Sheridan’s house was a mistake—a holdover from the home’s previous time spent as a church. Luckily, the couple play the game themselves, and don’t mind the visitors.[11] But if they did, would they have legal recourse to remove them?
Against the players—probably. Trespassing is likely to still be considered trespassing, whether the individual is there for a physical or digital purpose. But what about Niantic? Would the Sheridans have a cause of action against the company for giving his private property a digital attribute they hadn’t approved of, thus enticing strangers to trespass?
And what of the liabilities a homeowner could have for strangers wandering onto their property in pursuit of Pokémon? Generally speaking, property owners aren’t liable for injuries suffered by trespassers, but anyone who owns a pool is familiar with the doctrine of attractive nuisance.[12] The idea behind attractive nuisance is that some things are just too enticing, particularly to children, and as a result property owners are liable regardless of whether a person is a trespasser.[13] Is a Pokémon Gym an attractive nuisance? Does it depend upon whether a child is playing the game? What about a trespasser tracking down a Pokémon, which are generated in a somewhat random manner, and appear on private property regularly? Does it matter whether the property owner is aware of the digital features given to their real property by a third party?
Does the fact that their home is a Pokéstop increase or decrease the Sheridans’ property value? Are they obligated to disclose the status to potential buyers, in the event they decide to sell their house?
In the context of Pokémon, all of these questions seem a tad silly, but the fact is that at this moment, none of these questions have actual answers. When it comes to AR, the legal field is brand new, and any cases brought because of Pokémon Go will end up shaping the playing field and establishing the rules for future augmented reality endeavors. Keep a close eye on these issues as they develop; I promise it isn’t just lawyers trying to ruin everybody’s fun.
[1] See Ed Beeson, Pokémon No Go: How Lawyers Are Spoiling The Fun With The World’s Latest Craze, Law360, July 22, 2016, http://www.law360.com/articles/820143/pokemon-no-go-how-lawyers-are-spoiling-the-fun-with-the-world-s-latest-craze-.
[2] See Dave Thier, What Is Pokémon Go And Why Is Everyone Talking About It?, Forbes, July 11, 2016, http://www.forbes.com/sites/davidthier/2016/07/11/facebook-twitter-social-what-is-pokemon-go-and-why-is-everybody-talking-about-it/#6e0813b21c7b.
[3] See Alan Henry, How Ingress, Google’s Real-World Smartphone Game, Got Me Out of My Shell, Lifehacker, June 10, 2015, http://lifehacker.com/how-ingress-googles-real-world-smartphone-game-got-me-1710320867.
[4] See id.
[5] See Andrew Hayward, Why Pokémon Go Fans Should (Or Shouldn’t) Play Ingress, Greenbot, July 26, 2016, http://www.greenbot.com/article/3097573/android/why-pokemon-go-fans-should-or-shouldnt-play-ingress.html.
[6] See id.
[7] See Eric Lindfield, Pokémon Go’s Product Liability Woes, Law360, Aug. 3, 2016, http://www.law360.com/articles/824588/pokemon-go-s-product-liability-woes.
[8] PoliceActivity, Bodycam Shows Driver Playing Pokémon Go Crashes Into Police Car, YouTube (Jul. 19, 2016), https://www.youtube.com/watch?v=KvA9ZgC73vc.
[9] Madeline Billis, This Church-Turned-House Is Also An Unwilling Pokémon Gym, Boston Magazine, July 11, 2016, http://www.bostonmagazine.com/property/blog/2016/07/11/church-house-pokemon-go-gym/.
[10] See id.
[11] See id.
[12] See supra note 1.
[13] See id.
Photo Source:
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