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The wave of the future hit a courtroom on Friday when Candy Lab AR, makers of the augmented reality poker game Texas Rope ‘Em, sued Milwaukee County, Wisconsin, over an ordinance alleged to be violating the First Amendment.
In reaction to last year’s Pokemon Go craze, which had mobile-phone equipped game players visiting real-life locations in order to capture digital creatures from the Pokemon universe, the Midwestern city decided to require permits for virtual and location-based augmented reality games. Companies releasing the games have to go through a process that reviews the “appropriateness of the application,” submit a “certificate of insurance” in the amount of $1 million of general liability coverage, and potentially pay other fees as well.
That might have seemed appropriate to city officials who witnessed how Pokemon Go sparked nuisance litigation, but Candy Lab is challenging the constitutionality of the measure. The company, represented by attorney Brian Wassom (who wrote here about the real-life problems for augmented games), is hyping its lawsuit as having far-reaching implications for the industry.
According to the complaint (read here), the “restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. The Ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague such that Candy Lab AR does not have notice as to what speech must be approved by permit and which it can express without seeking a permit.”
Texas Rope ‘Em encourages players to collect cards to build their hands by visiting certain game stops that have been programmed into the application. Candy Lab asserts in its complaint that the medium of augmented reality is not conceptually new, giving as an example how sports broadcasters impose lines of scrimmage and first down markers during a telecast of a football game. The complaint also discusses other applications of AR including heads-up displays in cars, architectural renderings onto real-life locations and medical devices that scan a patient’s veins and then superimpose an image of veins onto the skin so that a doctor or nurse knows where to draw blood.
The lawsuit quibbles with the language of an ordinance that states, “Permits shall be required before any company may introduce a location-based augmented reality game into the Parks…”
“Taken literally, this language is incoherent and nonsensical,” states the complaint. “No company ‘introduces’ a piece of software ‘into’ any physical location. The fact that a particular software application is ‘location-based’ merely means that it will perform certain functions, or display certain content, based on where the device running the software is located at any given time. The developer’s role in distributing that software, however, ends with making it available for download in a software app store. Physical entry into a location only occurs when an individual carries his or her mobile device with them into the location.”
Most serious, though, are the arguments that augmented reality apps are a form of speech and that regulation can rise to a prior restraint. Candy Games demands a declaration that the ordinance is unconstitutional and unenforceable.
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