![\"Pokemon](\"https:\/\/cdn.images.express.co.uk\/img\/dynamic\/143\/590x\/Pokemon-Go-Gym-Coins-820379.jpg\")
<\/p>\nBy: Monica Malouf<\/p>\n
<\/p>\n
Since its inception in 2016, Pok\u00e9mon Go has been involved in numerous lawsuits for claims ranging from nuisance to unjust enrichment to trespass.[1]<\/a>\u00a0 This may come as no surprise, as the app entices users to enter private property while attempting to capture virtual creatures. \u00a0The app uses augmented reality (AR)[2]<\/a> to superimpose Pok\u00e9mon and other elements of the fantasy world onto real locations.[3]<\/a><\/p>\n Like straddling a state border, app users can be in two places at once\u2014in their local city and the virtual Pok\u00e9mon world. And while herds of nostalgic millennials ramble through neighborhoods pursuing Pok\u00e9mon, hundreds of suburban flowerbeds are trampled upon around the world.\u00a0 So, naturally, as the tulips were decimated, angry property owners filed lawsuits.<\/p>\n In In Re Pok\u00e9mon Litigation<\/em>, a federal judge in the United States District Court for the Northern District of California ordered Niantic, Inc. (Niantic)\u2013Pok\u00e9mon Go\u2019s creator\u2014and others to dissuade app users from trespassing onto private property.[4]<\/a> The company had to kindly remind users that violating someone\u2019s privacy and property rights was against the law.\u00a0 However, in addition to the trespass and nuisance claims which inspired this discouragement, Niantic also faced claims of virtual trespass.<\/em><\/p>\n Basically, Niantic placed its intellectual property on top of privately-owned land without the consent of landowners.[5]<\/a><\/p>\n But it isn\u2019t 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.\u00a0 In the minds of many, the existence of virtual creatures and Pok\u00e9mon Gyms floating above real land constituted trespass, regardless of whether any individual actually pursued them.<\/p>\n According to Jon Festinger, a law professor at the University of British Columbia, \u201c[the] virtual item [created for Pok\u00e9mon Go] exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can\u2019t fish it from a distance.\u201d[6]<\/a>\u00a0 Essentially, Pok\u00e9mon Go is planting alternate-reality items into real space.[7]<\/a> But even if people do not chase those virtual items does this \u201cplanting\u201d constitute physical trespass? Niantic\u2019s attorneys argued that it does not.\u00a0 Surprise, surprise.<\/p>\n In a memorandum supporting a motion to dismiss the claim, Niantic\u2019s attorneys argued that Niantic did not commit trespass because Pok\u00e9mon Go did not involve invasion onto private property by a tangible<\/em> object.[8]<\/a>\u00a0 They go on to say \u201c[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].\u201d[9]<\/a>\u00a0 In other words, existing law does not support the plaintiff\u2019s theory, and there is no reason to expand the existing law to be more inclusive.<\/p>\n 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.<\/p>\n In the agreement Niantic promised\u2014in addition to encouraging users not to trespass on private property\u2014to provide mediums for private property owners to file complaints regarding misuse of the app, private trespass, etc.[10]<\/a> Most importantly, private property owners can request Niantic remove Pok\u00e9mon Gyms and other virtual items from their property.[11]<\/a><\/p>\n What remains are questions regarding virtual trespass and the legal ramifications surrounding AR technology.\u00a0 It will be interesting to see if and when the law catches up with this fast-changing technology.<\/p>\n image source:\u00a0https:\/\/www.express.co.uk\/entertainment\/gaming\/820379\/Pokemon-Go-Gym-coins-new-changes-Niantic-major-update<\/p>\n [1]<\/a> See<\/em> James G. Gatto,\u00a0Nuisance and Unjust Enrichment Class Actions: Pok\u00e9mon Go…es to Court<\/em>!, NAT’L L. REV. (Aug. 3, 2016),\u00a0http:\/\/www.natlawreview.com\/article\/nuisance-and-unjust-enrichment-class-actions-pok-mon-go-es-to-court; Hannah Albarazi,\u00a0Pok\u00e9mon Go Nuisance Deal Netz Pomerantz $4M In Atty Fees<\/em>, Law360 (Aug. 22, 2019, 5:51 PM) https:\/\/www.law360.com\/articles\/1191631.<\/p>\n [2]<\/a> Augmented reality is defined as \u201can 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).\u201d Augmented Reality<\/em>, Merriam-Webster, https:\/\/www.merriam-webster.com\/dictionary\/augmented%20reality (last visited Oct. 3, 2019).<\/p>\n [3]<\/a> Jennifer Huddleston, Can You Trespass Without Setting Foot on a Piece of Property?<\/em>, Plain Text (June 28, 2018), https:\/\/readplaintext.com\/can-you-trespass-without-setting-foot-on-a-piece-of-property-5070adefd1cd.<\/p>\n [4]<\/a> See id.<\/em><\/p>\n [5]<\/a> See<\/em> Ryan Mitchell, Case Comment, Pok\u00e9mon Go-es Directly to Court: How Pok\u00e9mon Go Illustrates the Issue of Virtual Trespass and the Need For Evolved Tort Laws<\/em>, 49 Tex. Tech L. Rev. 959 (2017).<\/p>\n [6]<\/a> Yamri Taddese, Focus: Virtual trespassing result of Pokemon Go?<\/em>, Law Times (Aug. 1, 2016) https:\/\/www.lawtimesnews.com\/news\/focus-on\/focus-virtual-trespassing-result-of-pokemon-go\/262211.<\/p>\n [7]<\/a> See<\/em> Id.<\/em><\/p>\n [8]<\/a> See<\/em> Defendant Niantic, Inc.\u2019s Reply Memorandum In Support of Motion to Dismiss Consolidated Class Action Complaint, at 2, In Re Pok\u00e9mon Go Litigation, No. 3:16-cv-04300 (N.D. Cal. 2017).<\/p>\n [9]<\/a> Id.<\/em><\/p>\n