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A novel lawsuit appears to be coming to an end with an equally novel agreement. On Thursday, a bunch of homeowners suing over the way that the augmented reality game Pokemon Go led players to congregate on or near private property submitted a proposed settlement for review by a California federal judge. If the deal gets the judge’s blessing, Pokemon Go creator Niantic will become much more legally responsible for the virtual creatures — called Pokemon — that roam around and are invisible to all but those using a mobile device and the Pokemon Go app.
The class action consolidated many nuisance lawsuits filed in 2016 upon the record-breaking release of Pokemon Go. The complaint conveyed stories like the residents of the Villas of Positano, an oceanfront condo in Hollywood, Florida, who during the height of the Pokemon Go phenomenon, woke up in the early morning hours to hundreds of players behaving “like zombies, walking around bumping into things.”
Although that might sound funny, the case itself had the potential of redefining “trespass” in the digital age.
Was Niantic liable for trespass because it placed virtual items on private property without consent? Or were those items merely on users’ phones with the players ultimately responsible for where they adventured? Was it enough that Niantic encouraged players to capture digital creatures? Or did Niantic need to have knowledge that its actions would be substantially certain to result in the trespass by Pokemon Go players? Could Niantic be absolved by its policies admonishing players to stay off private property?
These were all untested questions, and unfortunately for mankind, they remain largely unresolved. The lawsuit survived a motion to dismiss, but the judge made the decision orally without a written follow-up that could provide guiding principles for any entertainment company venturing into the augmented game space.
That said, Niantic’s decision to settle — and the terms of the agreement — may be itself instructive.
Here’s what Niantic is now pledging to do in the form of injunctive relief:
—Upon complaints of nuisance or trespass and demands of the removal of a “Poke?Stop” or “Gym,” the company will make commercially reasonable efforts to resolve the complaint and communicate a resolution within 15 days.
—Owners of single-family residential properties get rights of removal within 40 meters of their properties.
—Niantic will maintain a database of complaints in an attempt to avoid poor placement.
—When Niantic’s system detects a raid of more than 10 players congregating, a warning message will appear on their screens reminding them to be courteous and respectful of surroundings.
—Niantic is also working with user-reviewers and mapping services like Google Maps to also mitigate any problems plus maintaining a mechanism so that park authorities can request a park’s hours of operation be honored.
—At the company’s expense, Niantic will have an independent firm audit compliance with obligations during a three-year period.
As for money, the named plaintiffs intend to seek service awards for $1,000 awards apiece with all other property owners or renters within 100 meters of a Poke?Stop only getting relief from the mitigation measures. The law firm of Pomerantz, on the other hand, will seek up to $8 million in attorney’s fees and $130,000 in expenses. The attorneys say they expended in excess of 2,500 hours on this case.
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