Pokémon Go Faces More Criticism

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Pokémon Go is a location-based augmented reality game in which players use their mobile device to catch Pokémon in the players’ real-world surroundings by utilizing the camera, GPS, and gyroscope features of the mobile device.  The game is a result of a collaboration between Niantic Inc., Nintendo Co. Ltd., and The Pokémon Company (collectively, the “game makers”).  Despite the immediate success of Pokémon Go, the game makers have faced a number of legal issues in the United States, especially in the past two weeks.  

On Tuesday, July 26, David Beckman, an end user of the popular game, filed suit against the developer, Niantic Inc., in Florida court.  Beckman claims that the game’s terms of service and privacy policy violate the Florida Deceptive and Unfair Trade Practices.  To create a profile on Pokémon Go, a user must sign in through the user’s Google, Facebook, or other preexisting third-party account.  According to Niantic’s policies, Niantic has the right to retain and share user data—including players’ location, recent web history, search terms, and user messages.  This license is perpetual and irrevocable, and therefore, will survive cancellation or discontinuation of a user’s access to or use of the game.  Beckman claims that Niantic does not have any real contractual obligation to users, since it can unilaterally, materially change its policies at any time and at its sole discretion.  In addition, Beckman claims that Niantic unlawfully asserts the right to terminate a user’s account at the company’s sole discretion and refuses a refund for any virtual goods purchased while playing the game.  Accordingly, Beckman seeks a declaratory judgment from the Florida court that the game’s terms of service contract is unenforceable.  If the court finds that Niantic has no real contractual obligation or that the contract is otherwise unenforceable, Niantic would not have any express right to collect data from players and could be subject to even more liability for its operation of the game and/or for others’ use of the game.  In other words, if the court grants Beckman’s request for a declaratory judgment, Niantic would have to change its policies.

In addition to the Beckman lawsuit filed last week, Niantic received criticism from the Electronic Privacy Information Center (“EPIC”) for its data collection practices related to the game.  As Bethany Rupert of King & Spalding reported two weeks ago, under the game’s original disclosure policy, the game makers were allowed to delve into iPhone users’ Google email accounts and documents without alerting the users.  Niantic released an update on July 13th that reduced its permissions, allowing it access to only the basic Google account information of users.  Despite this fix, EPIC urged the Federal Trade Commission (“FTC”) to launch an investigation of Niantic and its data collection practices related to Pokémon Go.  In its letter to the FTC, EPIC expresses a number of issues with Niantic’s data practices, including the issue that Niantic does not explain the scope of information gathered from users’ Google accounts or why it is necessary to access such information.

On top of the Beckman lawsuit and the criticism from EPIC, the game makers face a class action complaint filed by Jeffrey Marder on Friday, July 29.  In addition to catching Pokémon, players may gain access to Pokéstops and Pokémon gyms to acquire in-game items (which they can use to catch Pokémon) and to engage in virtual battles with other Pokémon Go players.  The game makers programmed the GPS coordinates of certain real world locations and designated them as Pokéstops and Pokémon gyms.  Mr. Marder filed a class action in the United States District Court for the Northern District of California, claiming that Niantic placed Pokéstops and Pokémon gyms on or directly adjacent to private property without the consent of the properties’ owners.  Marder claimed that this “intentional, unauthorized placement of Pokéstops and Pokémon gyms” on or near his property and the property of other members of the proposed class constitutes “a continuing invasion of the class members’ use and enjoyment of their land, committed by Niantic on an ongoing basis for Defendants’ profit.”

Mr. Marder claims that during the week of Pokémon Go’s release, strangers began lingering outside of his home in West Orange, New Jersey, with phones in their hands.  At least five individuals knocked on his door and asked for access to his backyard so they could catch Pokémon that Niantic placed at his residence without his permission.  In addition, Mr. Marder describes a number of other incidents around the country where Niantic designated Pokéstops and Pokémon gyms on private property without permission.  For example, an individual in Massachusetts reported that Niantic placed Pokémon gyms in his home without his permission.  Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum in Washington, D.C.  In response to the invasion of Pokémon players, the Museum’s communications director, Andrew Hollinger, stated that, “Playing the game is not appropriate in the museum, which is a memorial to the victims of Nazism.  We are trying to find out if we can get the museum excluded from the game.”

The game makers have not yet commented on these legal complaints raised by Beckman, EPIC, and Marder.  Though, the Pokémon Go Terms of Service, which users must agree to in order to play the game, states that a player is responsible for such player’s own conduct while playing the game and the player will not trespass, or in any manner attempt to gain access to any property or location where the player does not have a right or permission to be.  Under the terms, the game makers “disclaim all liability related to any property damage, personal injury, or death” that may occur during a player’s use of the game.  Even with this disclaimer, many legal questions have been raised since the game’s inception.  Is Pokémon Go’s Terms of Service enforceable?  Do the augmented reality objects (i.e., the Pokémon)constitute a physical invasion of real property?  Will the game makers be responsible for some of the players’ actions while playing the game?  Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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