Gotta’ Catch ‘Em All . . . Even Lawsuits?
By: Matthew Freeze
Pokémon GO is a game for mobile devices developed by Niantic, Inc. and released across most of the globe in early July, 2016. It is a location-based, augmented-reality video game, which means that it uses the various sensors in a smartphone—specifically the camera and GPS—to display virtual creatures on the phone’s screen.[i] While the game largely centers around this virtual component of catching and training these virtual creatures, there is a real-world component. The game centers on physical activity and requires players to go out into the real world and find physical locations where the virtual creatures are hiding, waiting to be caught by the player. As a result, physical trespass is a latent concern with this and other similar augmented-reality games.[ii]
For perspective, the game was downloaded over 130 million times in the first month after release, which means there are an immense number of people playing this game across the world.[iii] As noted above, the game requires players to go out to real-world locations, which have been pre-populated with these virtual creatures. Typically, the virtual locations coincide with landmarks that are listed in Google Maps.[iv] Random creature sightings, however, can occur in any location that the game’s software identifies. It is these latter locations combined with the vast number of people using the game that present such a thorny issue since so many people are out physically moving about on public and private property.
The question becomes: who will be liable for such trespass?
The clearest answer is that the individuals who commit the actual, physical trespass by entering onto private property will be liable. But what of the landowners themselves? A question remains as to whether they will be liable in those states that recognize the principle of attractive nuisance. This doctrine holds that landowners may be liable for harm suffered by those who are lured onto the property, but who do not have the capacity to appreciate the latent dangers on that property.[v] This largely applies to young children. Technically, a child must be 13 years old to accept the terms and services agreement that accompanies the game, but this simple click does not stop many children under that age from signing up and hitting the streets.[vi] The question may become what role the landowner plays in mitigating the presence of these virtual creatures on their property that can be seen as an enticement to younger children who will seek them out.
The largest and most potentially lucrative question for a claimant will be whether Niantic, the game’s developer, will retain any liability for placing the creatures on private property, albeit in a virtual manner, and thereby generating a nuisance. Niantic has already had its first brush with the courts on this. Jeffrey Marder, a New Jersey resident, filed a class action suit in U.S. District Court for the Northern District of California (where Niantic is headquartered) in late August 2016. Mr. Marder alleged that Niantic generated a nuisance on his New Jersey property by placing virtual creatures at GPS locations within his property lines and enticing game users to come access his property to catch the virtual creatures.[vii] Niantic will likely counter by stating that it is insulated from liability since the Terms of Service agreement and several popups within the game alert the player to not trespass during the use of the game.[viii] Of course, the question of the validity of these “clickwrap” agreements will come into play in any of Niantic’s attempts to shield itself from liability.[ix]
Since Pokémon GO and other augmented-reality games are in their infancy, none of these issues have been fully fleshed out. Given the relative success of Pokémon GO, however, it does not seem as if this style of game is soon to disappear; the issues surrounding these “generated” instances of trespass and nuisance will continue to plague their relative successes.
[i] The Legal Issues Surrounding Pokémon Go, Lawyer 2 Lawyer (Aug. 12, 2016), http://www.lawsitesblog.com/2016/08/podcast-legal-issues-surrounding-pokemon-go.html.
[ii] Denise Johnson, Poking Around Legal Issues Surrounding Pokémon Go, Claims Journal (Jul. 18, 2016), http://www.claimsjournal.com/news/national/2016/07/18/272200.htm.
[iii] Rachel Swatman, Pokémon Go catches five new world records, Guinness World Records (Aug. 10, 2016), http://www.guinnessworldrecords.com/news/2016/8/pokemon-go-catches-five-world-records-439327.
[iv] Sam Prell, Why your church, art, and water towers are Pokemon Go gyms and Pokestops, Games Radar (Jul. 11, 2016), http://www.gamesradar.com/why-your-local-church-and-water-towers-are-pokemon-go-gyms-and-pokestops.
[v] Attractive-Nuisance Doctrine, Black’s Law Dictionary (10th ed. 2014).
[vi] Niantic Labs, Pokémon GO Terms of Service, https://www.nianticlabs.com/terms/pokemongo/en (last visited Sept. 28, 2016).
[vii] Complaint at 1-14, Marder v. Niantic, Inc., No. 4:16-cv-04300 (N.D. Cal. Jul. 29, 2016), http://www.plainsite.org/dockets/3087pyqwy/california-northern-district-court/marderv-niantic-inc–et-al.
[viii] Niantic Labs, supra n6.
[ix] Alison S. Brehm & Cathy D. Lee, “Click Here to Accept the Terms of Service”, 31-WTR Comm. Law. 1, http://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html.