First, there were Angry Birds. Now, there is Pidgey’s Law. Put forward by Illinois State Rep. Kelly Cassidy, the Location-based Video Game Protection Act, otherwise known as Pidgey’s Law, seeks to fine developers of location-based video games for not removing virtual stops in the game at a property owner’s request. This bill was proposed in response to Pokémon GO’s Niantic Labs, who refused to remove a Pokéstop in Loyola Dunes, a state-protected park with endangered wildlife. The bill aims to force location-based video game developers like Niantic to remove “ecologically sensitive,” “historically significant,” or “dangerous” locations from games at a property owner’s request; noncompliance would result in a fine.
This is just one example of the many legal issues arising from Pokémon GO, an augmented reality game developed by Niantic for use on mobile devices. The game is free, and uses a mobile device’s GPS capability to augment reality, allowing players to locate, capture, battle, and train virtual creatures called Pokémon. The Pokémon appear on the screen in specific locations, encouraging players to move around to find as many Pokémon as possible. Since July 2016, the game has been downloaded more than 500 million times worldwide.
Augmented reality is a technological development that will have far-reaching legal implications, particularly regarding property rights. For example, by placing a virtual character on private property, Pokémon GO might affect the owner’s interest in exclusive possession of the property. Or it might create an attractive nuisance, raising issues of liability. Augmented reality games that interact with real property can lead to trespassing claims and issues of ownership regarding who owns the virtual property associated with the real property. Augmented reality can also potentially increase competition for the use of physical spaces, further implicating private property rights.
Niantic is already starting to see the effects of what happens when virtual reality and real property collide. For example, a New Jersey man filed suit against Niantic Labs, Nintendo, and the Pokémon Company, accusing Pokémon GO of encouraging strangers to trespass outside his home. Multiple individuals knocked on his door asking for access to his backyard to catch Pokémon that the game placed on his property – without his permission. A couple from Michigan filed a class-action suit in federal court in California claiming that Nintendo, Niantic Labs, and the Pokémon Company showed a “flagrant disregard for the foreseeable consequences of populating the real world with virtual Pokémon without seeking the permission of property owners.” Both suits raise claims that the game negatively impacts property owners’ quality of life, while the company profits by enticing players to trespass on private property.
While it can be easy to understand how augmented reality, and specifically Pokémon GO, can affect the legal rights associated with real property, it may be harder to intuit some of the more unique legal impacts augmented reality might have. For example, if the government decided to try to limit the number of players in a public space, players could mount a First Amendment challenge, specifically arguing for the right to peaceably assemble. Or government officials could try to use augmented reality games like Pokémon GO to influence voters, bringing election laws into the mix.
In fact, this is already happening. Hillary Clinton’s Democratic Presidential Campaign organized a Pokémon GO event in Ohio, encouraging people to register to vote while playing the game. Using Pokémon GO to lure people to polling stations where parties have mounted ad campaigns also pushes legal boundaries. Normally, campaign ads at polling places must conform to strict regulations; in the digital world, the rules are murkier. Richard Hasen, of the University of California, Irvine School of Law, says that if a campaign is using augmented reality to lure people into a polling place where they would see a campaign advertisement that counts as electioneering. Former FEC Chairman Michael Toner of Wiley Rein LLP disagrees, however, arguing that since personal devices are private spaces, they are not subject to electioneering laws.
For now, the technological world is still considered a private space. As technological innovations progress, however, and augmented reality further blurs the line between reality and fantasy, this may change. It will be interesting to watch and see how the legal world reacts to augmented reality as it is utilized by more companies in numerous industries. In the meantime, we can see how Niantic handles the legal challenges associated with catching our favourite Pokémon.