PokemonGo and the Law
by: Mari Bush on
POKEMON GO’s LEGAL TRAIL
Legal Reality and Augmented Reality
I must admit that I do not play Pokemon Go, do not have children who play Pokemon Go and I use my iPhone for calls, podcasts, directions and music. Nonetheless, I have been “lured”----as a cyber outsider with a law degree--- by some of the legal considerations posed by chasing down the various “virtual” characters. Undoubtedly, many of the questions in this blog may be answered by a more informed understanding of how this game works. Other questions may have been analyzed by more specialized practitioners. Pokemon Go does highlight the impact of changing technology on the law. We are in a world where legal reality intersects with augmented reality. This article points out a few of the challenging and fascinating civil law issues where Pokemon Go characters rear their augmented heads.
Tort Claims and Defenses: Negligence, Premises Liability, Invasion of Privacy:
If one considers how pervasive Pokemon Go has become, it is easy to understand its impact on tort law. In a car accident case, for example, much has been discussed in the popular and legal literature about the role of distracted driving. Pretrial discovery now includes seeking out cell phone records to determine if the involved drivers were using their cell phones for chats or texts. These same discovery tools will be honed to see if virtual critters may have been causing a distraction, too. Stay tuned.
Premises liability cases involve injuries that take place on another person’s property. Many jurisdictions adhere to the old categories of guest, invitee and/or trespasser to determine whether the extent of legal protection owed to the injured person. It is easy to imagine how these legal relationships would be affected by the presence of augmented reality. If a landowner adds lures to his property, should that increase their legal responsibility for people harmed when they come onto the property? If a person playing Pokemon Go is not paying attention when they stray onto private property, how would that influence their legal status if they are injured? Should these legal constructs be tempered by the landowner’s knowledge of the ubiquitous lures on their own or a neighbor’s property? What if the injured person is a minor? Does the presence of a highly cherished Pokemon Go create an “attractive nuisance” on a property? Stay tuned.
The claim of “invasion of privacy” exists in many jurisdictions. This intentional tort involves an offensive invasion of another’s privacy that results in losses, injuries or damages. The “invasion” takes place in a personal context and does not require an actual physical touching. Instances of Pokemon Go lures surrounding private residences have come to light. It will be interesting to see if the makers of Pokemon Go will be held liable for any invasive placements. Moreover, will individuals or businesses be able to locate lures in a manner that states a claim for invasion of privacy? Can the “tracking” of a player---in and of itself--- yield information that would invade the privacy interests of the player or others? Stay tuned.
Pokemon Go and Product Liability
Product liability claims may be based on an obviously defective product (such as a candy bar full of worms or an exploding Pinto automobile). Product liability claims may also be based on a product rendered defective due to lack of warnings or necessary safeguards.
For the reasons and examples described elsewhere in this piece, the Pokemon Go can be considered a consumer product. Whether it is accompanied by the appropriate warnings and safeguards to overcome product liability claims is not known. Stay tuned.
Intellectual Property and Pokemon Go
Intellectual property lawyers also note the challenges posed by Pokemon Go. Would otherwise protected images or trademarks lose their protection when captured as part of a Pokemon Go effort? When does chasing a Pokemon Go veer into infringement? Pokemon Go uses data developed by others, such as Google maps. Do their business contracts and licenses adequately address augmented reality usage? Stay tuned.
With varying degrees of poise and speed, the civil law changes to embrace new situations and concerns. Lawyers and non-lawyers alike are in the unique position to observe how the law responds to an augmented reality. Stay tuned.