How Pokémon GO Players Could Run Into Real-Life Legal Problems

An attorney explores the hard questions being raised by augmented reality games.
Courtesy of Photofest

In the classic comic book series Crisis on Infinite Earths, thousands of worlds collided. Prior to that title, virtually all of the various stories told and characters created by DC’s various comics were said to take place within parallel dimensions of the same universe. This convenient device allowed the “Golden Age” superhero stories from mid-century comic books to co-exist with later re-imaginings of the same characters without contradicting each other. When Crisis brought the walls between dimensions tumbling down, however, multiple versions of the same characters began occupying the same space, with predictably chaotic results.

Our world has begun to experience a similar phenomenon. Augmented reality games encourage players to travel throughout the real world and enable them to interact with digital characters and objects programmed to appear as if they exist at specific points in physical space. The appeal of this gaming mechanic is evident from the sci-if game Ingress, released a few years ago, and the massively popular new AR app Pokemon GO, which requires players to visit various real-life locations in order to discover, capture and train digital creatures from the Pokemon universe.

Just like the Crisis character HarbingerPokemon GO heralds a coming onslaught of similar AR games that will blend our physical world with their own particular brand of creative content. The downside of augmented gaming, however, is that, in real life, there is only one physical world, and all of these games must share it. The more such games are released, the more crowded our reality is going to get.

I’ve written about several of the repercussions of AR gaming over the past few years, both on my blog and in multiple chapters of my 2015 book, Augmented Reality Law, Privacy, and Ethics. They include competition between players of various games for use of the same physical spaces — conflicts that could disrupt the ability of players and non-players alike to enjoy the venue, and even lead to violence. (This problem is already highlighted by the fact that both Ingress and Pokemon GO were released by the same company — the Google spinoff Niantic — and both use public buildings and landmarks as the default locations for their digital objects.) I discussed this in Chapter 6 of my book:

Imagine, then, what would happen if another AR game with a completely different vibe and culture were to superimpose itself over the same physical locations used by Ingress players. … If two overlapping games — say, a techno-thriller mystery and a Dance Dance Revolution-esque flash mob — require players to show up at the same times and places, clashes of personality are bound to ensue.

Now multiply that scenario by a dozen, a hundred, or even a thousand. The beauty of AR is that an infinite series of digital experiences can be overlain atop the same physical place, but that will sometimes prove to be its bane as well. Like loquacious moviegoers, the way in which some people enjoy one augmented experience in a place may be inherently disruptive to someone else’s ability to appreciate a different digital experience in the same place.

It’s also easy to see how the owners of the physical real estate in question could take issue with (or, if they’re savvy, profit from) crowds of players using the space to play invisible games. There are already several businesses, and even churches, on both sides of the fence with Pokemon GO.

This is probably one reason Niantic prefers to locate its content on public land — although, as I’ve written, that will soon raise its own share of questions about the limits of First Amendment protections when augmenting public spaces.

We’ve also already seen run-ins between Ingress players and police officers understandably perplexed by what seems to non-players like odd behavior. At least one player gained notoriety after he was detained for loitering outside a police station to play the game. Other law enforcement agencies soon had similar Ingress-related experiences. At least one Pokemon GO player has likewise already been questioned by police, and law enforcement officers around the world are warning gamers not to play at police stations.

AR games raise myriad other concerns as well, including decreased employee productivitytrespass, players stumbling across crime scenescriminals targeting players and risks to minors. (Of course, there are upsides as well — including introducing couch potatoes to exercise.) Perhaps the most obvious, and likely the most common, drawback of AR gaming, though, is the risk of personal injury. Until smart eyewear becomes commonplace, the only means players will have to access augmented worlds are their mobile devices. Wandering through the physical world while staring through a phone screen is a recipe for running into things.

Does this mean AR games should be avoided, or even banned?  By no means. As with every innovation before them, society will adapt. It remains to be seen, however, precisely where we’ll draw the lines of propriety and legality around the use of such games. That’s an ongoing task in which I, as a lawyer, look forward to participating.

Brian D. Wassom is a commercial litigator in Southeast Michigan whose practice focuses on copyright, trademark, publicity rights, media law and related subject matter. He's a partner and the chair of the Social, Mobile and Emerging Media Practice Group at the law firm Honigman Miller Schwartz and Cohn LLPThis article has been republished with permission from Wassom.com.

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