In the current news is another emerging technology, which is called Augmented Reality. In general, augmented reality (“AR”) uses technology to artificially create the reality a person experiences. For example, this could be a pair of glasses that shows a person’s contact information when his/her face is seen, or mobile apps, like Pokemon Go, which interact with your location and surroundings to create aspects of the game. Yes, Pokemon Go, the new mobile app juggernaut that has emerged into the market, is something that up to now, hasn’t taken place on such a massive scale. Yet, this new application has created unique legal questions. What can we do with this experience that encourages people to travel all over? How might one protect his/her property from players? Is there any way to stop Niantic, the creator of the game, from using your property in the game?
How does Pokemon Go work?
Before addressing the legal problems that arise from the game, it’s important to know how the game works. As stated before, Pokemon Go is a form of AR, using GPS data from the location to help generate the variety of creatures that can appear in a location. In addition, certain locations and landmarks are coded to either give players items, or act as “goals” for them to capture for a team. There are small images on the markers, with titles and occasionally small descriptions. While many of these locations may be in public, or on publicly-accessible property, there are others that appear to be on privately owned or closed-off property. While it appears that there are some deals with Niantic to add goals at the locations of real-world partners, however, it is not the norm.
How might one control property rights?
For Pokemon Go, and similar apps, the solutions for businesses and individuals, outside of contacting the developer, lie in the torts of nuisance (preventing the ability to enjoy property without unreasonable interference), trespass (entering another person’s property without authorization), and potentially trademark or copyright infringement through the images of the landmarks used for in-game goals. Nuisance is perhaps the most likely to be used against the developers, as they may have no contact with the land. Because the geographic coordinates of certain in-game goals and reward areas may cause players to crowd in areas, there can be interference with the land owner’s enjoyment. This aspect of the game has already spawned a potential class action lawsuit. While trespass may also seem favorable, the fact that it would be limited only to the players, and not the developers, would likely limit the damages recoverable from player action. Furthermore, copyright and trademark infringement cases are likely limited due to the nominative use of the landmarks.
Yet, keeping players away may not be the most beneficial aspect for all businesses. The influx of players may bring additional costs in maintenance, and it may bring undesirable litter and parking issues, yet some businesses have capitalized on the new game. These businesses promote themselves by giving discounts to the various teams, and advertising charging stations, or their proximity to an in-game goal.
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