August 7, 2016 by Ed Kennedy
A Legal Stop to Pokemon Go? 3 Issues in Law that Surround the Global Gaming Hit
Disclaimer: This article is informative in purpose and does not constitute legal advice. The author urges you to obtain professional legal advice before pursuing any litigation.
OK. Lest the pitchforks and angry comments start coming (both of them hurt, just…in ‘different’ ways) let’s be clear and direct off the bat: Pokemon Go is a tremendous achievement in video games.
A generation or two ago the revelation in gaming was Pokemon Stadium – a Nintendo 64 game that took Pokemon from the prior (but rich) confines of 2D on Game Boy and realised the world created by Satoshi Tajiri and Ken Sugimori in glorious 3D. Suffice to say then, it’s a huge and commendable step up to now have the franchise boasting a title in augmented reality (aka VR).
Pokemon Go is a wonderful achievement in gaming and tech – and though this author couldn’t be classified as an active user of the game – nonetheless he appreciates and admires its innovation.
Notwithstanding this though, the Pokemon GO ‘experience’ as it stands at currently resides within a number of areas under law that are either ambiguous, uncertain, untested – or potentially all 3. This is as while the game is hugely popular – at once on track to outpace Twitter in terms of daily user use while also sending Nintendo stock soaring – it is also one with a number of issues surrounding its use. Some of these issues are clearly defined under law, others are ambiguous or evolving (and currently a ‘grey’ area).
So, while nobody may be advocating for an end to the game, the possibility exists that the experience as it stands may become a cause of conservation in the weeks and months ahead.
Beyond this, an awareness of the issues as they stand is worthwhile for any user of the Pokemon Go game. While local laws vary from state to state and nation to nation (so some exceptions or nuance to these laws may exist) common principles of the rule of law in nations where the game is popular such as the UK, US, Canada, Australia, and New Zealand affirm a commonality in these potential legal problems across multiple jurisdictions. Lets look now at 3 of them.
Who owns the space of augmented reality?
By very virtue of its operation Pokemon Go exists in new grounds when it comes to play. For gamers who have used the app the experience of the game is known. For those who haven’t (or non-gamers reading this) a brief explainer is useful of what exactly goes on when using it.
Pokemon Go is a game played on a smart phone that uses a mobile phone’s camera to create a world in the game that is shaped by the real living world around the player. A little like the experience of wearing 3D glasses when someone visits the movies, Pokemon Go puts a game on a phone (step 1), then takes ‘film’ from the world around the phone (step 2) and then mixes it in with the existing game to give the user a experience that combines a mix of the game (step 1) and the real world (step 2).
This then creates a experience that is unique to a user’s game on their phone yet impacted by the world around them. Accordingly, while a title like Ingress released in 2013 may have beaten Pokemon Go to release in terms to pioneering this style of augmented reality, the immense popularity of the game (that requires interacting with the real world around them) is unlike anything seen before. For those who’ve in recent weeks seen big crowds pop up of people with mobile phones in parks and public squares, they’ll already have a clear idea of the measure of popularity this game has.
The trouble with this popularity is while the law may clearly define private property and the rights of the property owner – more to follow on this but at a basic level ‘this is my land, I own it, stay off it!’ – public spaces like parks and plazas are shared spaces. The issue with Pokemon Go (and other apps like it) is its feasible a gamer’s experience could be impacted by too many other people playing a game around them. What’s more, other gamers aside, the potential for disruption to other non-gamers using the shared space is real.
Yet, unlike having a house party that gets an uninvited visitor – in which case the owner could then say ‘this is my house and you’re not invited so I need you to leave’ – a game being played on a phone someone privately owns is indeed theirs; but the public space in the real world in which they are required to play dosen’t go by these rules.
Thus, the issue before the law at the moment is who has right to use that public space when contested if the use of it also deploys augmented reality (put simply: a game that only exists on a phone but requires public space to play it). This follows on to a separate but similar issue.
Private Property and Trespassing
Pokemon Go uses GPS to encourage a player to travel around their real life local area just as a Pokemon trainer like Ash Ketchum travels around the world to catch different Pokemon. So, a player’s smartphone may tell them there is a Squirtle near that private marina, a Voltorb around that power plant – maybe even an actual MewTwo just hanging on the border of a neighbour’s backyard (sometimes M2 just loves a BBQ and chance to chill by the pool) – but to be a Pokemon master its known and understood: you’ve ‘gotta catch them all’.
The drawback is ‘gotta catch them all’ is unlikely to be codified in a user’s local law or regarded as a fair and adequate defence should a player be in breach of law. While laws do vary from state to state and country to country, the concept of trespass on private property – and the potential for penalty under the law should someone trespass – is foundational in many societies, and penalties for breaching it real and severe. Given the game has had issues with inaccurate maps thus far, the potential for (albeit accidental) trespass is very real.
It would be hoped in event of such a trespass a semblance of common sense prevails – if a player of the gamer has accidentally wandered onto someones farmland in a rural area searching for a Caterpie a polite request to leave – and an agreement to leave on request – would hopefully resolve the issue without requiring any further involvement by both parties under law.
At the same time though: private property and the rights accorded to an owner of such property is extensive and comprehensively protected under law in numerous nations in which the game has found such popularity. This to say: if a owner is not so understanding of a trespasser trespassing (or fears it is not an innocent mistake but instead a potential burglar using the game as a ruse to trespass on the land) then the penalties under law could yet be applied. This can be understood as problem number 2 with Pokemon Go.
Personal Safety and Liability
People can enjoy playing Pokemon Go. People can enjoy Pokemon Go’s requirements for a player to get out in the real world and travel around. Yet, being faced with a choice to progress in their game or risk their safety is something people are unlikely to enjoy. Being asked to catch a Pokemon sitting on a road is a solid example of this.
Yet, this is not the sole example. As well as maps being inaccurate there have been a number of incidents in which players have been injured or encountered a dangerous situation as a result of playing the game. This just scratches the surface of the wider potential for the game to be used for criminal activity.
As it stands a gamer who encounters such a danger and feels a civil case could be made for redress against the game’s creators could do so; provided they have also made use of the opt-out clause within the game’s terms of service. Yet, Few gamers may know the need to opt-out.
As outlined by Pennsylvania attorney Max Kennerly the need for a gamer to write to Niantic within 30 days of downloading the game is something readers of Max’s article may have done – alongside other keen readers of the Terms of Service and other astute gamers – but it is undoubted many more gamers did not.
Though at this juncture it’d appear unlikely at least some semblance of an exception could be found that could then be used to mount a challenge against Niantic for liability; the existence of this opt-out requirement would indeed appear to make such a challenge harder for someone seeking to build a case.
…and a special word on privacy
The issue of user data and privacy is not exclusive to Pokemon Go. For this reason it can likely not be regarded as an issue unique to the game as many other (non-gaming) apps have been subject to concerns being raised about how much data they collect. Nonetheless, noting the game has also garnered attention for privacy concerns is important to understanding the wider debate surrounding the game.
Play On or Play It Safe?
Gamers who apply common sense to their gaming use could find the the issues with the game are unlikely to be immense. By observing the rights and laws surrounding private property, taking care to ensure no harm or intrusion occurs upon other gamers who may also be using the space within the augmented reality, and by seeking to protect themselves by opting out from the clause a reasonable capacity to play the game safely without encountering any such issues can be regarded as likely.
At the same time, just as the game uses augmented reality, it is most certainty a reality that these issues do remain, and are not the sole potential problems with the games as defined under law. So, while Pokemon Go is undoubtedly a wonderful technological achievement and the source of hours of fun for many gamers at the moment, until such a time as the issues identified here reach a greater resolution its possible users uncomfortable with the game may find greater peace of mind achieved simply by uninstalling it and instead playing one the previous versions of Pokemon handheld games instead.
How soon these issues would be resolved is unclear, yet it is also possible as great coverage and/or legal challenge in light of the game’s issues is mounted, Niantic may take steps to seek to further address and neutralise the issue as they exist, potentially providing an update of the game that at once offers a great gaming experience while also minimising or resolving the issues that have led to such concerns surrounding the game arising.
Ed Kennedy is a journalist and web designer proudly from Melbourne, Australia. Say hi to Ed via firstname.lastname@example.org or on Twitter @Edkennedy01