The Practical Legal Implications of Pokémon Go

by Williams Venker & Sanders
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On July 6, 2016, Nintendo released Pokémon Go in the United States.  Pokémon Go is a downloadable application for your smartphone that provides for an “augmented reality experience.” In the game, computer-generated virtual creatures, aka Pokémon, are superimposed on the live camera view of player’s smartphones. The player travels to real, physical locations, such as parks, beaches and notable landmarks, in an attempt to locate and catch the virtual Pokémon.

Full disclosure: I’m about as technology savvy as Phil Hartman’s Unfrozen Caveman Lawyer character from Saturday Night Live, so I’m not going to even attempt to explain what “augmented reality” is. Instead, I’ll refer you to Bloomberg.com, whose contributors were kind enough to create “A Beginner’s Guide to Pokémon GO,” to assist those of us frightened and confused by technology.

However, I witnessed the phenomenon firsthand the other evening while in the University City Loop. Picture groups of people of all ages wandering up and down a very busy urban street crowded with pedestrians and cars all the while holding up their smartphones in front of them like electronic divining rods searching for virtual, computer-generated treasure placed on real property, both public and private.

The creator of Pokémon Go, an American software company named Niantic, Inc., and its venture partner, Nintendo, have been criticized for choosing inappropriate locations, i.e., cemeteries, memorials, and other monuments, as sites to catch Pokémon creatures. For instance, after an increasing number of individuals were reported playing Pokémon at Arlington National Cemetery, a notification was posted on the cemetery’s Twitter account that requested all visitors refrain from playing the game on the grounds.

Poor taste in choosing game locations aside, could Nintendo and Niantic be creating liability in tort for their choices of real locations for the placement of their virtual objects? What happens when playing a game in “augmented reality” has real-world, legal implications?

For example, could the placement of a virtual Pokémon inside a real, fenced-in area be said to have created an attractive nuisance? Would it then be reasonably foreseeable that a child might scale a fence to catch a Pokémon? If that child injured themselves, would Nintendo and Niantic be liable because of the creation and placement of the Pokémon? Moreover, do Nintendo and Niantic owe a duty of care to not place the Pokémon on private property or in dangerous locations?

Not surprisingly, Niantic and Nintendo included terms of service that players must agree to before playing Pokémon Go. The full terms of service may be accessed here, but in summary, players assume the responsibility of safe play while Niantic and Nintendo disclaim all liability for essentially any conceivable mishap that might result, i.e., property damage, personal injury or death, violation of any laws, and any tort liability that might result. Players also agree to binding arbitration unless they provide written notice to Niantic within 30 days of accepting the terms of service. Is such an agreement enforceable?

In Missouri, one cannot release others from liability for conduct that is willful or intentional, grossly negligent, or involves the public interest. While it is possible to release one from liability for their own negligence, such a release is typically disfavored and strictly construed against the party benefitting from the release. Additionally, the placement of the release and its readability i.e. is it in large, bold type at the beginning of the document as opposed to tiny print at the end, also factors into whether a court will enforce its provisions. A limitation of liability might also be found to be unconscionable and unenforceable if a court determines the terms are weighted so unfairly in favor of one of the parties.

What if a Pokémon is placed on private property, does the property owner have any rights to prevent it? It could be argued that the “augmented reality” objects in Pokémon Go do not constitute a physical invasion of real property. Instead, it is the players entering onto the property in search of the virtual objects that may constitute a trespass. But what happens when real people traipse onto your real property and then really injure themselves? Could you also bear some liability?

At this point it seem safe to safe that the potential issues resulting from augmented reality games such as Pokémon Go have yet to be fully realized. But while the popularity of this game may fade relatively quickly, the legal issues created will remain as a result of the slew of augmented reality games that are sure to follow.

 

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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