Q: So, a lot of people still may not know much about Pokemon Go, but everyone knows it’s suddenly a big deal in the world of phones and games.
Andrew Rossow: Indeed. Niantic Inc. partnered up with Nintendo Ltd. and the Pokémon Co. and released what is now the hottest mobile game for smartphones since Candy Crush Saga. Pokémon Go is a mobile augmented reality game that encourages users to go out into the real world and use their smartphone to catch Pokémon.
Q: Please translate.
Rossow: OK, for those of you who were not born into the Pokémon and Digimon generations, Pokémon are animated "pocket monster" creatures that exist in the wild that you catch, train, and battle with against other Pokémon trainers.
Q: Next question: What the heck is augmented reality and why is it the latest fad?
Rossow: Well, for one, augmented reality is not a fad, but an idea that has been developed and tested, yet has failed to live up to its potential — at least until recently. The term refers to a view of the physical, real-world environment whose elements are supplemented, or augmented, with computer-generated images and sound via an electronic device. In Nintendo's case, our streets, our parks, our world has now been augmented with a Google Map interface, playing home to Pokémon creatures, battle gymnasiums, and poke-stops.
A ‘Pokestop’ is an in-game landmark that players can be lured into visiting for in-game items that help them in their journey to catch, train, and evolve their Pokémon. These include libraries, churches, restaurants, private residences, museums, etc. However, as we have started seeing, these Pokestops have already begun luring its users into real-time criminal encounters.
Q: How big has the game gotten?
Rossow: As of today, I believe over 30 million users have downloaded the game since the first week of its release in July. Pokémon Go is expected to surpass the total number of Twitter users, which I believe it already has.
Q: You’ve done a lot of interviews in recent weeks suggesting there may be some legal downsides to the game. Talk about that.
Rossow: Well first, it's a good thing that the developers have created a way for people of all ages to get off their couches and computers and engage in a fun, active way to get outside and travel. However, it has also created a legal battlefield of issues we've only begun to see and think about. As lawyers, we are trained to think in terms of the result, the consequences, and the liability of every action. What the developers have failed to anticipate is the liability it has created not only on itself, but on its users and — possibly for want of a better word — its "victims."
Q: Explain.
Rossow: Looking at Pokémon Go from an intellectual property standpoint, several questions arise. The first involves the creation of creatures, objects, and places and their placement throughout our physical world. Does placing an AR element, such as a Pokémon creature, without the property owner's permission affect their exclusive right to possession in their property?
Q: Why is that necessarily a problem?
Rossow: Specifically, people are now wandering onto each other's property looking for Pokémon to catch, which has divided people into two categories: (1) those who are aware they are going onto others' property, but are too engaged in the game to pay attention to that fact, and (2) those who are aware they are going onto others' property, but do what they need to do to catch that Pokémon. This has resulted in people walking into homes, businesses, churches, museums and even memorials and funerals — clearly places that are inappropriate for such behavior. The game does in fact affect property owners' rights in their own property to which they have the right to physically exclude others from intruding upon their land. We will have to wait and see as more bizarre stories unfold and cases start heading to the courts.
Q: Sounds complicated.
Rossow: There's more. Next, does owning property in the real world transcend or extend those property rights to the AR world along with any associated intellectual property elements that the developers place on it? Again, I'd answer in the affirmative.
Lastly, and the most important question that I feel will not be answered until the courts get involved, is the idea of consent. Obviously with mobile app developments, outside sources attempt to breach, hack, or find ways to publicize vulnerabilities in the program. On this notion, the app requires updates. As these updates are pushed out, the more AR objects and elements are placed into the game — or in other words, on other people’s property, be it private and/or public.
Consequently, do we as property owners have the right to refuse permission to developers in that we do not want an AR creature or object placed on our property? Again, my answer is in the affirmative. In the terms of service, Niantic, Inc. has relieved itself of any liability resulting from usage of the game, whether it be property damage or personal injury, yet it does not think twice about placing AR elements onto the public’s property. This is problematic. We have a right to refuse the placement of objects on our property to prevent others from trespassing and obstructing our property. Niantic has begun to address some of these concerns by allowing people and businesses to “opt out” of the Pokemon Go app by filling out a form on its website; however, there is no guarantee of removal. Again, this is problematic and frustrating.
Q: What else?
Rossow: Well, there are other liabilities. Ohio is one of several states that has adopted the attractive nuisance doctrine. Ohio courts have consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. Under the doctrine, landowners are required to eliminate dangerous conditions on their land which attract children. The rationale is that children may not appreciate or understand the danger the land or item on the land brings. An individual who fails to correct or eliminate that danger on their property is civilly liable for any injury the child sustains on it, even if the child was trespassing.
So the obvious question is, does placing an augmented object or element on another individual’s private property without their permission invoke the attractive nuisance doctrine? Should the property owner, whether it be the owner of a business or private residence, be held civilly liable due to their failure to reduce or eliminate the danger that “lures” these “trainers” to their property? Is it even fair to require property owners to be aware of the augmented reality around them? How far would this duty extend?
Presumably, there are also potential trespassing issues — under Ohio law, the crime of trespass is a fourth-degree misdemeanor. An individual commits a trespass when they enter the property of another without permission. An individual doesn’t even have to know that they are trespassing to be held liable for it.
Q: What’s the responsibility of the game users?
Rossow: Pokémon Go is being played by children, teens, and surprisingly, the adult generation who originally grew up in the Pokémon generation.
Let’s first consider young children. Most frightening, children much younger than you and I were back in the day are now walking the streets with smartphones. The truth of the matter is, children are nowadays holding a dangerous world in their hands, subject to the entire world of the Internet.
Parents have children who truly want to go out and catch Pokémon, but are going out on their own without supervision and may find themselves in places they normally wouldn’t be. Tthey may even stroll onto another individual’s property without appreciating possible hazards. What happens if, regrettably, the child becomes a victim of criminal activity? Users need to remember to use their common sense, because there is no blanket “Pokemon Go” defense.
Q: Could the game developers actually end up being liable for any of the things you’re talking about?
Rossow: That remains to be seen. Currently, there are two pending class-action lawsuits out of New Jersey and Michigan, to which we will have to see how they play out to see where the line begins to be drawn, if at all.
While the developers have tried to shield themselves of any liability by means of an opening disclaimer, it still doesn’t seem to be getting through to its users. Originally, users would agree to Niantic’s terms and conditions in the very fine print stating they cannot enter private property without the owner’s permission. However, very few people ever actually read the fine print. Now, as a result of concerns, Niantic has pop-up warning disclaimers every time a user opens up the game, generating random warnings telling players not to drive and play, not to enter private property, and to be aware of your surroundings. What is still problematic is that even from its initial launch was Niantic expressly disclaiming that it is not liable for any property damage, injuries, or deaths that result while playing? This seems too general and too anticipated based off the nature of the beast it has just released into the wild.
Even if Nintendo and Niantic Inc. are held to be liable, what kind of liability could even be imposed? To what extent? How would this even be addressed in court? Would class actions be the proper tool? Or would they have to face the flood of trainers suing them individually?
Q: Talk about those pending lawsuits.
Rossow: 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 last week 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. We will have to wait it out and see what becomes of these suits.
Q: What can we expect in the future?
Rossow: 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.
Q: This is really bigger, you’re saying, than just this particular game — it’s about cyber law in general.
Rossow. Exactly. This will hopefully force legislators and courts to face reality — that our laws must be modified to include our digital age. Augmented reality brings in many areas of law that we as society are still trying to understand on a daily basis: data rrivacy, cyber-security, cyberspace, intellectual property and the First Amendment. So the question is, how do we expand our statutes and laws into the ever-growing realm of cyberspace? Do we need to create new statutes specifically targeted at AR and cyber-crimes such as playing Pokemon Go to target potential victims/players?
Time will tell.
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