Will a Class Action Over 'Pokemon Go' Redefine What It Means to "Trespass"?

Pokemon Go - H - 2016

The hype around Pokemon Go, the augmented reality game encouraging players to visit various real-life locations in order to discover, capture and train digital creatures from the Pokemon universe, has faded. But litigation in its wake and a forthcoming decision by a California federal judge has real potential to add new meaning to a legal concept — trespass — that's been around at least since medieval times.

Last summer, homeowners began filing nuisance suits against Niantic, the company that developed the app game. Jeffrey Marder, who was disturbed by strangers holding up their mobile phones as if they were taking pictures outside of his New Jersey home, is one of the plaintiffs. So are residents of the Villas of Positano, an oceanfront condo in Hollywood, Florida. According to the complaint, they became aware of hundreds of non-residents infiltrating their complex during the early hours of the morning, behaving "like zombies, walking around bumping into things."

A curious phenomenon, no doubt, and also a possible game-changer to one of the oldest of torts.

In reaction to the lawsuits, since consolidated, Niantic brought an interesting argument on a motion to dismiss.

"Plaintiffs allege an invasion due to Niantic's 'designat[ion]' of their properties as locations containing or near virtual Game Items," stated the Pokemon Go developer. "This 'designation' only causes Game Items to display on players' phones..."

"Thus, Plaintiffs would never even see the allegedly intruding Game Items unless they played the game at home," continued Niantic through its lawyer, Jeffrey Gutkin at Cooley LLP. "This virtual 'invasion' does not 'meaningful[ly ... occupy the[ir] land': it is less invasive than noise, vibrations, dust, or a chemical cloud, all insufficient for trespass."

In other words, the Pokémon creatures may seem like trespassers themselves, but that's but an illusion. As for the game-players, Niantic stresses that it requires players to agree to its Terms and Trainer Guidelines, which advises that no one should break any law to capture a creature.

The plaintiffs aren't satisfied by this. They are looking to collect a ticket from the judge to proceed on the ground that Niantic created an unreasonable interference with the use and enjoyment of their land. They object to Niantic's argument that if there's any fault, it lies with the players themselves. 

"Niantic placed Pokemon Gyms and Pokestops on private property even though it knew or should have known that its actions would result in a trespass and nuisance to the owners," argue plaintiffs' attorneys at Pomerantz LLP.

The opposition brief, filed earlier this month, then continues with a bold proposition.

"In the alternative, landowners should have a right to refuse the placement of virtual objects on their property — at least where those virtual objects create any kind of incentive for any persons to be in their physical proximity," states the brief (read here).

On Thursday, in advance of a hearing before judge James Donato, Niantic attacked what it calls the "induced trespass" and "virtual trespass" theories.

The game developer reiterates that a defendant can only get into trouble for trespass by causing tangible objects — such as projectiles or a balloon — to be on someone's property.

"This does not support Plaintiffs’ theory that property owners should be able to prevent app developers from displaying on-screen virtual objects on the devices of third parties, at virtual locations corresponding to being near the property owners’ properties," states the reply brief (see here). "If accepted, it would threaten numerous online services. For instance, creators of apps that display on-screen markers (e.g., a walking tour app that flags landmarks or an app that permits users to 'check-in' virtually to a location to connect with friends) could be liable for trespass. There is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory."