This week, we check in on an interesting lawsuit filed against Niantic, the makers of Pokémon Go, for virtual trespassing and other wrongs.
https://archive.org/details/LegalGeekEp100
Pokémon Go was the craze of summer 2016, and the software application has undergone some updates recently to keep it fresh. Niantic still brings in over $30 million dollars monthly with this app, so the game remains highly popular as the weather warms up and brings people back outside for 2017.
However, making big money and successful endeavors often brings threats in the form of legal action. This case is interesting because it looks legitimate, and the case may be on the cutting edge as virtual reality and enhanced reality games and devices go more mainstream.
Residents of several states have joined claims in California federal court to sue Niantic for placing virtual items in the form of Pokémon, Pokestops, or Gyms on their property, causing many people to trespass and damage those properties. The primary theory is that this placement of the virtual items is a type of new virtual trespass, but there's also an argument that the damage and intrusions are caused by negligence on the part of Niantic.
As to the virtual trespass claim, Niantic has a fairly strong response in that trespass laws, while varied from state to state, typically do not protect from intrusions of intangible items like noise, vibrations, dust, or chemical clouds. Trespass is a fairly specific type of tort, and creating a new version of that would have potentially large unintended consequences for other developers in the VR field and elsewhere. Thus, as interesting as the concept of virtual trespass may be, it is not established in law by the states or federal government, and it seems unlikely that the court will expand the law to cover the facts presented by the plantiffs of this case.
Turning to the negligence argument, that potentially has some legs. Even though Niantic warns players when they log in against going into unauthorized or dangerous areas, that would not necessarily protect them from liability if the overall development of the app was deemed careless or thoughtless in such a manner that encourages activities that lead to things like unwanted trespass and/or property damage. Indeed, this is likely the very reason Niantic prevents players from operating the app at speeds of over 15-20 miles per hour, so as to avoid carelessly encouraging players to play and drive distracted.
Thus, it will be interesting to see if this case proceeds beyond initial summary judgement stages, and if so, whether Niantic will be the first to define the limits of what developers can do with VR and augmented reality type experiences. It's possible that like some parks in places like Milwaukee, the plaintiffs (and any other aggrieved party) may be able to negotiate an agreement with Niantic to prevent the game assets from popping up at certain hours of day, or maybe completely. But it will be more interesting if there is not a settlement like that.
The Bottom Line is, even though Pokémon Go is a lot of fun for users, just ask my 8 year old and 6 year old, and even though many businesses love the extra foot traffic caused by getting people outside hunting Pokémon in their area, it's not a desire shared by everyone, especially private property owners. With VR and similar technology on the rise, law will need to adjust and adapt to fit the circumstances, in a similar way as trespass laws with respect to airspace and drone usage. Who knew Lapras, Charizard, and Dragonite would lead the charge to settling these issues in court?
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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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