By: Monica Malouf
Since its inception in 2016, Pokémon Go has been involved in numerous lawsuits for claims ranging from nuisance to unjust enrichment to trespass.[1] This may come as no surprise, as the app entices users to enter private property while attempting to capture virtual creatures. The app uses augmented reality (AR)[2] to superimpose Pokémon and other elements of the fantasy world onto real locations.[3]
Like straddling a state border, app users can be in two places at once—in their local city and the virtual Pokémon world. And while herds of nostalgic millennials ramble through neighborhoods pursuing Pokémon, hundreds of suburban flowerbeds are trampled upon around the world. So, naturally, as the tulips were decimated, angry property owners filed lawsuits.
In In Re Pokémon Litigation, a federal judge in the United States District Court for the Northern District of California ordered Niantic, Inc. (Niantic)–Pokémon Go’s creator—and others to dissuade app users from trespassing onto private property.[4] The company had to kindly remind users that violating someone’s privacy and property rights was against the law. However, in addition to the trespass and nuisance claims which inspired this discouragement, Niantic also faced claims of virtual trespass.
Basically, Niantic placed its intellectual property on top of privately-owned land without the consent of landowners.[5]
But it isn’t that the company threw a bunch of patents on the ground. The argument holds that, by placing their virtual creations above the space of private property, the company has violated the rights of private individuals. In the minds of many, the existence of virtual creatures and Pokémon Gyms floating above real land constituted trespass, regardless of whether any individual actually pursued them.
According to Jon Festinger, a law professor at the University of British Columbia, “[the] virtual item [created for Pokémon Go] exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can’t fish it from a distance.”[6] Essentially, Pokémon Go is planting alternate-reality items into real space.[7] But even if people do not chase those virtual items does this “planting” constitute physical trespass? Niantic’s attorneys argued that it does not. Surprise, surprise.
In a memorandum supporting a motion to dismiss the claim, Niantic’s attorneys argued that Niantic did not commit trespass because Pokémon Go did not involve invasion onto private property by a tangible object.[8] They go on to say “[t]here is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory [of virtual trespass].”[9] In other words, existing law does not support the plaintiff’s theory, and there is no reason to expand the existing law to be more inclusive.
And while it would have been interesting to see the court rule on virtual trespass and whether or not to expand the current tort law surrounding trespass, the case settled.
In the agreement Niantic promised—in addition to encouraging users not to trespass on private property—to provide mediums for private property owners to file complaints regarding misuse of the app, private trespass, etc.[10] Most importantly, private property owners can request Niantic remove Pokémon Gyms and other virtual items from their property.[11]
What remains are questions regarding virtual trespass and the legal ramifications surrounding AR technology. It will be interesting to see if and when the law catches up with this fast-changing technology.
image source: https://www.express.co.uk/entertainment/gaming/820379/Pokemon-Go-Gym-coins-new-changes-Niantic-major-update
[1] See James G. Gatto, Nuisance and Unjust Enrichment Class Actions: Pokémon Go…es to Court!, NAT’L L. REV. (Aug. 3, 2016), http://www.natlawreview.com/article/nuisance-and-unjust-enrichment-class-actions-pok-mon-go-es-to-court; Hannah Albarazi, Pokémon Go Nuisance Deal Netz Pomerantz $4M In Atty Fees, Law360 (Aug. 22, 2019, 5:51 PM) https://www.law360.com/articles/1191631.
[2] Augmented reality is defined as “an enhanced version of reality created by the use of technology to overlay digital information on an image of something being viewed through a device (such as a smartphone camera).” Augmented Reality, Merriam-Webster, https://www.merriam-webster.com/dictionary/augmented%20reality (last visited Oct. 3, 2019).
[3] Jennifer Huddleston, Can You Trespass Without Setting Foot on a Piece of Property?, Plain Text (June 28, 2018), https://readplaintext.com/can-you-trespass-without-setting-foot-on-a-piece-of-property-5070adefd1cd.
[4] See id.
[5] See Ryan Mitchell, Case Comment, Pokémon Go-es Directly to Court: How Pokémon Go Illustrates the Issue of Virtual Trespass and the Need For Evolved Tort Laws, 49 Tex. Tech L. Rev. 959 (2017).
[6] Yamri Taddese, Focus: Virtual trespassing result of Pokemon Go?, Law Times (Aug. 1, 2016) https://www.lawtimesnews.com/news/focus-on/focus-virtual-trespassing-result-of-pokemon-go/262211.
[7] See Id.
[8] See Defendant Niantic, Inc.’s Reply Memorandum In Support of Motion to Dismiss Consolidated Class Action Complaint, at 2, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).
[9] Id.
[10] See Settlement Agreement at 6-8, In Re Pokémon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).
[11] See Id.