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By: Madison Jennings,<\/p>\n
On July 6, 2016, North America experienced the beginning of a Pok\u00e9mon craze the likes of which our nation had not seen since the nineties.<\/p>\n
The release of Pok\u00e9mon Go, an augmented reality video game designed to be played on a smart phone, had young and old alike dreaming of becoming Pok\u00e9mon 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, \u201cWell, there are a lot of potential issues here, is this really such a good idea?\u201d[1]<\/a><\/p>\n To which, of course, the world responded, \u201cPlease be quiet\u2014I\u2019m trying to catch a Charizard!\u201d<\/p>\n Augmented Reality (or \u201cAR\u201d) is a gaming feature that inserts digital characters and checkpoints into the physical world, visible only via gaming device.[2]<\/a> This is a not entirely new, if severely underused, gaming model. Pok\u00e9mon Go creator Niantic has previously employed AR in its 2012 release titled \u2018Ingress\u2019.[3]<\/a> In Ingress, players join factions and visit real-life monuments, cultural hubs, and other similar public areas which act as in-game \u2018portals\u2019 to win points, defeat their enemies, or whatever it is video game nerds do to feel a sense of accomplishment.[4]<\/a> Pok\u00e9mon Go follows much the same model.<\/p>\n 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 Pok\u00e9mon will appear on the screen as the app uses the phone\u2019s 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 Pok\u00e9mon Go thing a try.<\/p>\n Once you\u2019ve captured your first Pok\u00e9mon, you\u2019re 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.<\/p>\n Of course, to catch Pok\u00e9mon, you need Pok\u00e9balls. To get Pok\u00e9balls, you need to find a Pok\u00e9stop. Pok\u00e9stops are real-world locations given digital properties by the game. Niantic uses the same \u2018portals\u2019 from its previous game (Ingress) as Pok\u00e9stops.[5]<\/a> These locations were originally submitted by Ingress players, and can be anything from fountains and memorial benches to historical landmarks and restaurants.[6]<\/a> You visit Pok\u00e9stops to get Pok\u00e9balls, you get Pok\u00e9balls to catch Pok\u00e9mon, you catch Pok\u00e9mon 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. Pok\u00e9mon Go shattered the record for downloads in its first week from the Apple App Store.<\/p>\n That\u2019s all very well and good, but where do the legal issues arise? What\u2019s the problem, lawyers?<\/p>\n 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\u2019s release, reports starting surfacing of players being lured into secluded areas by in-game treats (Lure Modules designed to attract digital Pok\u00e9mon and real life trainers) and robbed, car accidents as a result of playing Pok\u00e9mon Go while driving, and distracted players literally walking off of a cliff while hunting Pok\u00e9mon.[7]<\/a> Then, of course, there was the body camera footage of a player distractedly plowing into the rear of a parked police vehicle\u2014he steps out of the car with the game still open on his phone screen, telling officers, \u201cThat\u2019s what I get for playing this dumba\u2014 game.\u201d[8]<\/a><\/p>\n Then, of course, the fascinating question: what are your rights, if there\u2019s a Pok\u00e9mon, a Pok\u00e9stop, or even a Pok\u00e9mon Gym on your private property?<\/p>\n (Pok\u00e9mon Gyms, like Pok\u00e9stops, are real world locations given digital significance by the game. At gyms, players can battle their Pok\u00e9mon for a chance to earn some in-game currency.)<\/p>\n Often, gyms are located at churches, which proved to be a problem for a Massachusetts man living in a renovated church.[9]<\/a><\/p>\n 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]<\/a><\/p>\n Pok\u00e9mon Go doesn\u2019t typically place in-game locations onto private homes, and it\u2019s fairly obvious that the inclusion of the Sheridan\u2019s house was a mistake\u2014a holdover from the home\u2019s previous time spent as a church. Luckily, the couple play the game themselves, and don\u2019t mind the visitors.[11]<\/a> But if they did, would they have legal recourse to remove them?<\/p>\n Against the players\u2014probably. 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\u2019t approved of, thus enticing strangers to trespass?<\/p>\n And what of the liabilities a homeowner could have for strangers wandering onto their property in pursuit of Pok\u00e9mon? Generally speaking, property owners aren\u2019t liable for injuries suffered by trespassers, but anyone who owns a pool is familiar with the doctrine of attractive nuisance.[12]<\/a> The idea behind attractive nuisance is that some things are just too<\/em> enticing, particularly to children, and as a result property owners are liable regardless <\/em>of whether a person is a trespasser.[13]<\/a> Is a Pok\u00e9mon Gym an attractive nuisance? Does it depend upon whether a child is playing the game? What about a trespasser tracking down a Pok\u00e9mon, 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?<\/p>\n Does the fact that their home is a Pok\u00e9stop increase or decrease the Sheridans\u2019 property value? Are they obligated to disclose the status to potential buyers, in the event they decide to sell their house?<\/p>\n In the context of Pok\u00e9mon, 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 Pok\u00e9mon 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\u2019t just lawyers trying to ruin everybody\u2019s fun.<\/p>\n <\/p>\n <\/p>\n [1]<\/a> See <\/em>Ed Beeson, Pok\u00e9mon No Go: How Lawyers Are Spoiling The Fun With The World\u2019s Latest Craze<\/em>, 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-.<\/p>\n [2]<\/a> See <\/em>Dave Thier, What Is Pok\u00e9mon Go And Why Is Everyone Talking About It?<\/em>, 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.<\/p>\n [3]<\/a> See <\/em>Alan Henry, How Ingress, Google\u2019s Real-World Smartphone Game, Got Me Out of My Shell<\/em>, Lifehacker, June 10, 2015, http:\/\/lifehacker.com\/how-ingress-googles-real-world-smartphone-game-got-me-1710320867.<\/p>\n [4]<\/a> See id.<\/em><\/p>\n [5]<\/a> See <\/em>Andrew Hayward, Why Pok\u00e9mon Go Fans Should (Or Shouldn\u2019t) Play Ingress<\/em>, Greenbot, July 26, 2016, http:\/\/www.greenbot.com\/article\/3097573\/android\/why-pokemon-go-fans-should-or-shouldnt-play-ingress.html.<\/p>\n [6]<\/a> See id. <\/em><\/p>\n [7]<\/a> See <\/em>Eric Lindfield, Pok\u00e9mon Go\u2019s Product Liability Woes<\/em>, Law360, Aug. 3, 2016, http:\/\/www.law360.com\/articles\/824588\/pokemon-go-s-product-liability-woes.<\/p>\n [8]<\/a> PoliceActivity, Bodycam Shows Driver Playing Pok\u00e9mon Go Crashes Into Police Car<\/em>, YouTube (Jul. 19, 2016), https:\/\/www.youtube.com\/watch?v=KvA9ZgC73vc.<\/p>\n [9]<\/a> Madeline Billis, This Church-Turned-House Is Also An Unwilling Pok\u00e9mon Gym<\/em>, Boston Magazine, July 11, 2016, http:\/\/www.bostonmagazine.com\/property\/blog\/2016\/07\/11\/church-house-pokemon-go-gym\/.<\/p>\n [10]<\/a> See id.<\/em><\/p>\n [11]<\/a> See id.<\/em><\/p>\n