Month: October 2016

By: Sarah Wenrich,

EpiPen, a product produced by Mylan Pharmaceutical, has become a household word in the last decade thanks to its reliable, life-saving technology that can be used to easily and safely administer epinephrine to someone experiencing anaphylaxis.[1] However, as EpiPens have become more well known, their prices have also increased over 500% within the last ten years,[2] even though the only noticeable difference was the addition of a flip-top cap on the case. [3] While the EpiPen’s widespread distribution is crucial in case of emergency, this extraordinary increase in price has caused patients who are in need of the product to refrain from filling their prescriptions because they cannot afford the cost.[4] The FDA has said that they will speed up the approval process for competitors or generic versions of the EpiPen[5], but the technology behind the EpiPen makes that much easier said than done. [6]

Most recently, Teva Pharmaceuticals submitted a product to the FDA that would directly compete with the EpiPen, but it was rejected in March of 2016. [7] While the reasons behind the rejection have not been made public, it has been speculated that it had to do with the design of the cap. Teva’s model had a cap that had to be unscrewed before use, whereas Mylan’s EpiPen does not.[8] This is an aspect of the design that Mylan actively lobbied against while Teva was awaiting approval. [9] Mylan reasoned that having to screw off the cap in an emergency could be confusing[10], but their own product has not been foolproof. There have been instances of patients confusing the needle end in emergencies and stabbing their thumbs instead of their thighs. [11]

Other companies have created competing products, but insurance companies refused to cover them, forcing the pharmaceutical companies to discontinue their production. [12] Adrenaclick was one of the products originally pulled from the market for this reason, but it has since returned.[13] Even with Adrenaclick back in the market, Mylan continues to hold 90% of the market share on epinephrine auto-injectors.[14] Contributing to this near monopoly is the fact that unlike most medical prescriptions where the pharmacist can swap out a name brand drug for a generic, the FDA has made it illegal for pharmacies to substitute alternatives, such as Adrenaclick, for the EpiPen.[15]

Perhaps most concerning aspect of the outrageous price increase of the EpiPen is the fact that people have begun to create their own DIY versions of the life-saving product, as they cannot afford to fill their prescriptions. [16] A group of men have created a YouTube video on how to build your own “EpiPencil” with items that you can purchase at the store, with the exception of the liquid epinephrine, which requires a doctor’s prescription.[17] Its design is bulky, but the video shows that it will adequately administer the drug in an emergency for less than $35.[18] However, patients and doctors alike are aware of the dangers that this could present in an emergency[19]. The “Epipencil” faces the hurdle of being unable to accurately administer the correct dosage of the drug, in addition to presenting other concerns associated with creating your own medical device, such as issues with sterilization.[20]

This potentially dangerous alternative to which people have turned showcases just how imperative the drug is to people with allergies that cause anaphylaxis. The patent for EpiPen’s design expires in 2025,[21]but it is clear that something must be done to combat EpiPen’s price hike before then. Right now, people with allergies that result in anaphylaxis have three choices: they can shell out $608 annually for an EpiPen, create their own EpiPencil for under $35 and face a slew of health risks, or hope that they do not come into contact with whatever it is that causes their anaphylaxis. For people who have insurance that covers the cost of the EpiPen or are financially able to foot the bill, the choice is an easy one. For others, it is a difficult choice that they should not have to make.

 

[1] See About EpiPen Auto-Injector, EpiPen, http://www.epipen.com/en/about-en/about-epipen (last visited Oct. 1, 2016).

[2] See Beth Mole, EpiPen maker CEO to seething lawmakers: We’re doing the world a favor, Ars Technica (Sept. 22, 2016, 2:25 PM), http://arstechnica.com/science/2016/09/epipen-maker-ceo-to-seething-lawmakers-were-doing-the-world-a-favor/.

[3] See Meghana Keshavan, 5 reasons why no one has built a better EpiPen, STAT (Sept. 9, 2016), https://www.statnews.com/2016/09/09/epipen-lack-of-innovation/.

[4] See Rising cost of potentially life-saving EpiPen puts pinch on families, CBS News (Aug. 16, 2016, 7:02 AM), http://www.cbsnews.com/news/allergy-medication-epipen-epinephrine-rising-costs-impact-on-families/.

[5] See Mole, supra note 2.

[6] See Keshavan, supra note 3.

[7] See Jonathan Newman, The Lack of EpiPen Competitors is the FDA’s Fault, Mises Institute (Aug. 24, 2016), https://mises.org/blog/lack-epipen-competitors-fdas-fault.

[8] See Michael Gibney, Could EpiPen’s plastic cap be Mylan’s secret weapon?, FiercePharma (Sept. 1, 2016, 4:21 AM), http://www.fiercepharma.com/drug-delivery/could-a-plastic-cap-epipen-have-given-mylan-its-market-dominance.

[9] See id.

[10] See id.

[11] See Keshavan, supra note 3.

[12] See Newman, supra note 7.

[13] See id.

[14] See Mole, supra note 2.

[15] See Brett Trout, Government is to blame for the skyrocketing price of EpiPens, not patents, IPWatchdog (August 29, 2016), http://www.ipwatchdog.com/2016/08/29/government-blame-price-epipens-patents/id=72412/.

[16] See Larson, supra note 16.

[17] See id.

[18] See id.

[19] See id.

[20] See id.

[21] See Gibney, supra note 8.

Photo Source:

http://media2.s-nbcnews.com/i/MSNBC/Components/Video/201608/a_101_epipen_price_160823.jpg

By: Nick Mirra,

When Google released its Google Glass platform in April of 2012 , the market was shaken by such a new and exciting innovation.[1] The glasses were touted to be innovative and invaluable to its users through features including: weather forecasting, reminders, GPS, taking photos, and recording video, among many others.[2] Ultimately, Google Glass fizzled out due to its expensive pricing structure and low sales.[3] Because Google vacated the market segment, (with the exception of a few less-publicized offerings in development) the opportunity to develop glasses-based tech was once again wide open.[4]

With the introduction of Spectacles, Snap Inc. (formerly known as SnapChat) is attempting to capture what Google and its competitors were never able to do.[5] Snap Inc.’s new product has streamlined the functionality of their smart eyewear product into something simple: glasses with an easy-to-use camera that photographs what you see.[6] Snap Inc. began their company as Snapchat, a photo sharing app which displayed photos for up to 10 seconds before the pictures vanished forever.[7] The brand’s Spectacles will be the first time the software company has ventured into the realm of hardware.[8]

Spectacles are set to retail for $130 which will make them accessible to most consumers who have a legitimate interest in them.[9] While it is impossible to forecast exactly how many units will sell, it is almost certain that more units of Spectacles will be sold than of Google Glass because of the significantly lower retail price.[10] With the potential to sell to the masses, familiar concerns of privacy that were raised by Google Glass are resurfacing at a rapid pace.

Snap Inc. has taken at least one step to safeguard against the privacy concerns. In anticipation of the discomfort that a wearable camera may cause the public, the company decided to place a ring of led lights on the front frame of the glasses that illuminate when the glasses are recording.[11] Even though the light ring is present, what is stopping someone from disabling it or covering it with a piece of tape? While that is a measure which may put some at ease, many members of the public may remain uncomfortable knowing that people are walking around with cameras pointing at them.

In response to various technological advancements, the expectation of privacy has evolved more frequently in the past decades than in any other period in history.[12] Prior to the digital age, the right to privacy was a more straightforward – albeit still complex – concept.[13] Now that the market is becoming saturated with wearable technologies such as Snap Inc.’s Spectacles, questions of privacy are popping up more than ever.[14] What are the consequences of constantly pointing a camera at everyone you see?

Google Glass faced a similar issue by having a camera mounted on the platform.[15] Glass was met with immense social opposition, including the product being banned from certain restaurants, movie theaters and other public venues.[16] The root of the issue stems from social discomfort with having a camera pointing everywhere you are looking.[17] Courts may soon be confronted with the issue of someone wearing the glasses in a setting which has legitimate expectations of privacy. What are the implications of someone wearing a head mounted camera in a bathroom or locker room? Why would it be okay to wear glasses that have a camera, but not walk in brandishing a standard handheld digital camera and pointing it at people?

While the concept of wearable technology is gaining traction and popularity, it is evident that the legal system needs to adapt to respond to the new issues. Perhaps it will require a lawsuit to bring these specific issues to light, but if Spectacles are wildly popular, a lawsuit is likely in the near future. Snap Inc. is basing their entire product on the one aspect of Google Glass that made the public uncomfortable. It is a head mounted camera that can be discreetly actuated. If someone walked into a bathroom with these glasses on, would you be comfortable?

 

[1] See The History of Google Glass, Glass Almanac, http://glassalmanac.com/history-google-glass/ (last visited 9/26/2016).

[2] See Evan Dashevsky & Mark Hachman, 16 Cool Things you can do with Google Glass, PC Mag, http://www.pcmag.com/slideshow/story/308711/16-cool-things-you-can-do-with-google-glass (last visited Sep. 26, 2016).

[3] See Jim Edwards, Google Ends Sale of Google Glass, Business Insider, http://www.businessinsider.com/google-ends-sales-of-google-glass-2015-1 (last visited Sep. 26, 2016).

[4] See Paul Lamkin, The Best Smartglasses 2016, Wareable, http://www.wareable.com/headgear/the-best-smartglasses-google-glass-and-the-rest (last visited Sep. 26, 2016).

[5] See Josh Constine, The Hopes and Headaches of Snapchat’s Glasses, Tech Crunch https://techcrunch.com/2016/09/24/more-than-just-specs/ (last visited Sep. 25, 2016).

[6] See Id.

[7] See Margaret Rouse, Snapchat, Search Mobile Computing, http://searchmobilecomputing.techtarget.com/definition/Snapchat (last visited Sep. 27, 2016).

[8] See Supra note 5.

[9] See Id.

[10] See Supra note 3. (Stating it is speculated that Google only sold around 10,000 units of Google Glass).

[11] See Supra note 5.

[12] See e.g., Heather B. Repicky, Reasonable Expectations of Privacy in the Digital Age, Nutter, http://www.nutter.com/Reasonable-Expectations-of-Privacy-in-the-Digital-Age-07-09-2012/ (last visited Sep. 27, 2016) (Discussing the concerns at the “increasingly complex intersection of privacy and technology).

[13]The Evolution of the Concept of Privacy, EDRi, https://edri.org/evolution-concept-privacy/ (last visited 9/27/2016).

[14] See id.

[15] See Jake Swearingen, How the Camera Doomed Google Glass, The Atlantic, http://www.theatlantic.com/technology/archive/2015/01/how-the-camera-doomed-google-glass/384570/ (last visited Sep. 26, 2016).

[16] See Alyssa Newcomb, From ‘Glassholes” to Privacy Issue: The Troubled Run of the First Edition of Google Glass, ABC News, http://www.consumerwatchdog.org/story/glassholes-privacy-issues-troubled-run-first-edition-google-glass (last visited Sep. 26, 2016).

[17] See id.

Photo Source:

http://1u88jj3r4db2x4txp44yqfj1.wpengine.netdna-cdn.com/wp-content/uploads/2016/09/Snapchat-Spectacles-2-930×495.jpg

By: Andrew Toney,

The Internet grows every second. Companies collect data from clients and store it on vast online databases, online shoppers trade their credit card numbers for groceries, and grandparents upload embarrassing pictures of their grandchildren on their MySpace pages. Some browsers create accounts on various websites that they may never visit again, leaving sensitive data behind a password less creative than my first-grade niece’s art projects. The Internet is meant for fun right? Much of the information that we share online is relatively meaningless, but, when we do provide sensitive data, we expect the web designers to keep that information a secret, right? So what are we, the consumer, supposed to do when covert criminals smuggle our data into their own hard drives? This blog post explores the expanding cyber-security industry, the protection of our privacy, and the new challenges emerging from our reliance on the Web.

Yahoo Inc. recently reported that 500 million of its user accounts were stolen in 2014, in what may be the largest data breach in the history of the Internet.[1] News has also broken on the Democratic Party’s recent frustration with hackers, who they believe have intercepted Party correspondence for over a year.[2] The most recent instance of online sabotage has come from the largest target of all – the White House. Government officials reported that they were currently “looking into” a cyber breach after a scan of Michelle Obama’s passport was posted online.[3] It would appear that the frequency of cyber attacks has not changed; indeed, cyber attacks are as old as the Internet itself. Rather, the sophistication and devastation of recent attacks has the US government and major companies sounding a call for action.

Many solutions offered by the government thus far have created a game of give-and-take between server security and rights to privacy. A highly contentious bill, the Cyber Intelligence Sharing and Protection Act (CISPA), is currently being debated in Congress.[4] CISPA is aimed at curbing cyber attacks by creating a data-sharing system between private companies and the federal government.[5] CISPA would allow major companies to share sensitive data with the government in order to identify and exterminate potential cyber-threats. Companies who agree to share client data would be free from any legal ramifications stemming from the release of sensitive client data.[6] Opponents of the bill point to the broad language defining a “cyber threat,” contending that an event as small as a spam email could warrant the release of personal information from local to federal authorities.[7] The original form of this bill was shot down in 2012 amid obvious concerns regarding Internet privacy. However, CISPA is making headway in the legislature as cyber attacks continue to threaten sensitive data held by major companies.

Private companies specializing in cyber-security technologies have taken a different route that may reduce such an impact on Internet privacy. An Israeli-based firm, Illusive Networks, is currently developing a system designed to misdirect hackers while simultaneously tracking their movements.[8] The design creates a series of false “doors” that hackers may choose to exploit in an attempt to reach a data payload in a valuable company server. If a hacker chooses the wrong door, then the company can detect the mistake and begin tracking movements on a simulated computer system.[9] The system is ultimately designed to frustrate hackers away from big business databases, but it also allows trackers to understand new methods used by hackers in order to prepare for future attacks. Of course, there is also a possibility that experienced hackers can avoid simulated systems in their infancy, further exposing sensitive company data.

The cyber security industry is experiencing rapid growth and for good reason. Huge companies are being exposed to legal action from their clients due to a lack of data protection, while classified documents held by the federal government are being leaked to the average Joe. The climate of fear surrounding this issue will certainly lead to some change in the near future. Will we allow our legislators to solve this issue for us, or will power ultimately fall to the engineers and programmers in the private sphere?

 

[1] Dustin Volz, Yahoo Says at Least 500 Million Accounts Hacked in 2014, Huffington Post (Sept. 22, 2015, 2:52 PM), http://www.huffingtonpost.com/entry/yahoo-hack-500-million-accounts_us_57e4278ce4b0e28b2b52da7f?section=us_technology.

[2] Ruth Sherlock, Russia Hacked Democratic National Committee Computer Network and Obtained All of its Trump Research, Telegraph (June 14, 2016, 7:45 PM), http://www.telegraph.co.uk/news/2016/06/14/russia-hacked-democrat-national-committee-computer-network-and-o/.

[3] Michelle Obama’s Passport Scan Posted Online in Apparent Hack, Telegraph (Sept. 23, 2016, 12:16 AM), http://www.telegraph.co.uk/news/2016/09/22/michelle-obamas-passport-scan-posted-online-in-apparent-hack/.

[4] H.R. 234 – Cyber Intelligence Sharing and Protection Act, Congress.gov, https://www.congress.gov/bill/114th-congress/house-bill/234/text.

[5] Jordan Pearson, America’s NewCybersecurity Agency Can’t Function Without CISPA, Vice (Feb. 10, 2015, 4:49 PM), http://motherboard.vice.com/read/americas-new-cybersecurity-agency-cant-function-without-cispa.

[6] Id.

[7] Jason Koebler, The New CISPA is Identical to the Old One, but the Political Climate is Scarier, Vice (Jan. 9, 2015, 11:44 AM), http://motherboard.vice.com/read/the-new-cispa-is-identical-to-the-old-one-but-the-political-climate-is-scarier.

[8] Lance Higdon, Cybersecurity Professionals are Using Misdirection to Combat Hacking, Vice (May 2, 2016, 11:33 AM), http://motherboard.vice.com/blog/cybersecurity-professionals-are-using-misdirection-to-combat-hacking.

[9] Id.

Photo Source:

http://uwf.edu/media/cybersecurity/Cyber-Security-(2).jpg

By: Cambridge Lestienne,

Paid brand endorsements are on the rise, and the trend seems to be causing a quite a stir for celebrities and marketers alike. Some social media and celebrity personalities, such as the Kardashian sisters, now find themselves at the center of an ethical debate over the nature of this form of advertising.[1] The issue at hand is whether these types of endorsements made by celebrities and public figures are deceptive because the individuals posting them are being paid for their posts. While celebrity Instagram and Snapchat accounts may be a visual example of such potentially deceptive advertising, the practice is also taking place in another booming media market that is not visual at all: podcasting.

As media transitions to more mobile consumption, podcasts continue to surge in popularity. Reports from both Edison Research and Wondery found that about 20% of adults in the U.S. listen to at least one podcast a month, which is an increase of 17% from last year.[2] This boom is likely due in part to the success of podcasts such as Serial, which had 75 million episode downloads within the first six months of its debut.[3] As the popularity of podcasts increases, so does their money-generating potential. Podcast advertising is up 48% over last year and projected to grow another 25% a year through 2020.[4] ZenithOptimedia estimates that advertisers will spend approximately $35.1 million on podcasts in 2016, up roughly 2% from 2015.[5]

While podcasters may not be posting visual advertisements like celebrities do on Instagram and Snapchat, they are still advertising on behalf of their sponsors. These advertisements are most often conducted through “host-read” ads.[6] According to Mark DiCristina, marketing director at MailChimp, one of the largest podcast advertisers, “When the host is personally reading the ad and telling a story about the product in her own words, it lands with the audience in a different and more authentic way than a traditional ad spot.”[7] But what happens when listeners are unaware that the podcast hosts are being paid to tell these personal stories? Are podcasters not falling into the same rabbit hole as celebrities like the Kardashians? And where does the law draw the line between paid endorsements and deceptive advertisements?

The Federal Trade Commission (“FTC”) has been grappling with this issue for years in light of developments in the social media space.[8] In its Guides Concerning the Use of Endorsements and Testimonials in Advertising, the FTC stated, “Advertisers are advised that using unrepresentative testimonials may be misleading if they are not accompanied by information describing what consumers can generally expect from use of the product or service.”[9] The FTC also stated that endorsers should avoid describing experiences with a product they have never used.[10] Endorsers should further disclose any connection between themselves and the marketer of a product that could affect how consumers evaluate the endorsement.[11]

Though the FTC has issued guidelines for advertising through endorsements, they have stopped short of enacting regulations on the practice.[12] This has led podcasters, like those from Gimlet Media, to question how they advertise on behalf of their sponsors.[13] In an effort to make the distinction between content and advertisements clear to listeners, Gimlet Media uses special musical backgrounds and disclaimers to notify listeners of when an ad has begun.[14] Additionally, while the hosts of Gimlet Media podcasts talk about their personal experiences using products, they have opted to stop explicitly endorsing the products of their sponsors.[15]

It seems that for the time being, podcasters, like celebrities on Instagram and Snapchat, should proceed with caution when advertising on behalf of their sponsors. A director of the FTC’s Bureau of Consumer Protection said, in relation to a settlement with Warner Bros. regarding paid endorsements, “Consumers have the right to know if reviewers are providing their own opinions or paid sales pitches.”[16] As media advertising continues to grow, specifically in the context of podcasts, it likely will not be long before firm regulations are put into place to constrain these potentially deceptive practices.

 

[1] See Sapna Maheshwari, Endorsed on Instagram by a Kardashian, But Is It Love or Just an Ad?, N.Y. Times (Aug. 30, 2016), http://www.nytimes.com/2016/08/30/business/media/instagram-ads-marketing-kardashian.html.

[2] See Andrew Meola, Podcasts are Becoming More Popular Among Listeners and Advertisers, Bus. Insider (Jun. 6, 2016, 11:07 AM), http://www.businessinsider.com/podcasts-are-becoming-more-popular-among-listeners-and-advertisers-2016-6.

[3] See Id.

[4] See Ken Doctor, An Island No More: Inside the Business of the Podcasting Boom, NeimanLab (Sept. 12, 2016), http://www.niemanlab.org/2016/09/an-island-no-more-inside-the-business-of-the-podcasting-boom/.

[5] See Steven Perlberg, Podcasts Face Advertising Hurtles, Wall St. J. (Feb. 18, 2016), http://www.wsj.com/articles/podcasts-face-advertising-hurdles-1455745492

[6] Ken Doctor, And Now a Word From Our Sponsor: Host-read Ads and the Play Between Nice and Scale, NeimanLab (Sept. 13, 2016,), http://www.niemanlab.org/2016/09/and-now-a-word-from-our-sponsor-host-read-ads-and-the-play-between-niche-and-scale/.

[7] Dino Grandoni, Ads for Podcasts Test the Line Betweem Story and Sponsor, N.Y. Times (Jul. 26, 2015), http://www.nytimes.com/2015/07/27/business/media/ads-for-podcasts-test-the-line-between-story-and-sponsor.html.

[8] See Manatt, Phelps & Phillips, LLP, Advertising Law – September 2016 #3, JD Supra (Sept. 22, 2016), http://www.jdsupra.com/legalnews/advertising-law-september-2016-3-88862/

[9] Fed. Trade Comm’n, The FTC’s Endorsement Guides: Being Up-Front with Consumers, https://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements.

[10] See id.

[11] See id.

[12] See Grandoni, supra note 7.

[13] See id.

[14] See id.

[15] See id.

[16] See Fed. Trade Comm’n, Warner Bros. Settles FTC Charges It Failed to Adequately Disclose It Paid Online Influencers to Post Gameplay Videos (Jul. 11, 2016), http://www.mediapost.com/publications/article/280028/ftc-warner-bros-paid-influencers-to-promote-vid.html?edition=94532.

Photo Source:

http://lifechurchlancaster.org/wp-content/uploads/2012/07/download.jpeg.

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:

https://i.ytimg.com/vi/e686-tZBfME/hqdefault.jpg