July 20, 2016
By Andrew L. Rossow, Esq.
What started out as an April fool's joke has now made fools of everyone all ages and up. Niantic, Inc. has partnered with Nintendo, Ltd. and The Pokémon Company and have released what is now the hottest mobile game to come to smartphones since Candy Crush Saga. Pokémon Go is a mobile augmented reality game that encourages users to go out into the real world and use their smartphones to catch Pokémon. Pokémon are animated "pocket monster" creatures that exist in the wild that you catch, train and battle against other Pokémon trainers.
You might be wondering what augmented reality is and why it is the latest fad. Well, for one, augmented reality is not a fad, but an idea that has been developed and tested, yet has failed to live up to its potential, at least until recent. "Augmented reality" (AR) refers to a view of the physical, real-world environment whose elements are supplemented, or augmented, with computer-generated images and sound via an electronic device. In Nintendo's case, our streets, our parks, our world has now been augmented with a Google Map interface, playing home to Pokémon creatures, battle gymnasiums and Pokestops.
A "Pokestop" is an in-game landmark that players can be lured into visiting for in-game items that help them in their journey to catch, train and evolve their Pokémon. These include libraries, churches, restaurants, private residences, museums, etc. However, these Pokestops have started luring users into real-time criminal battles, where they gyms are places players can go to battle other trainers and Pokémon.
Pokémon Go is a mobile game that puts an augmented layer of Poke-content on top of a Google Map program. This allows players to use the GPS feature in combination with their mobile phone cameras and Google accounts on their smartphones to "walk" or "run" through this augmented Poke-world to find Pokémon, catch them, train them and battle against other players. The game takes players down public streets, public parks, restaurants, museums, and even private property such as churches and homes.
As of July 13, 2016, Pokémon Go is the biggest mobile game in U.S. history to be released to the smartphone market since Candy Crush Saga. More than 20 million people have downloaded the game since its release, which has been available to the public for less than one week. According to sources, the game has been downloaded more than 7.5 million times. If this download trend continues, Pokémon Go is expected to surpass the total number of Twitter users.
Nintendo has just created a battlefield of legal trouble
While Niantic, Inc., Nintendo, Ltd., and The Pokémon Company (developers), have created a way for people of all ages to allow them to engage in a fun active way to get outside and travel, it has also created a legal battlefield of issues that it has only begun to see in its initial week's launch. As lawyers, we are trained to think in terms of the result, the consequences, and the liability of every action. What the developers have failed to anticipate is the liability it has created not only on itself, but also on its users and its "victims."
Who are the players involved with this augmented work of art?
The intellectual property behind the creation of Pokémon Go is quite interesting and complex. Patents, copyrights and trademarks are interconnected among at least three companies that have helped revive Pokémon and bring it back into the 2016 era.
Niantic, Inc., the company behind the previous augmented reality application, Ingress, is back at it again, but now with its success hitting Pokémon fans globally. According to some sources who have researched into the intellectual property aspects of the developer's global craze, Niantic, Inc. has two patents: a provisional patent filed in 2012 and a utility patent filed in 2013. The patent was recently issued in December 2015.
The Pokémon Company
The Pokémon Company, the creators of the Pokémon universe, have copyrighted and trademarked works known all over the world. Originally launching Pokémon in Japan as early as 1996, The Pokémon Company is responsible for the mass marketing, licensing, and its brand management and protection of their pocket monster world.=
Nintendo Co., Ltd.
Nintendo filed its trademark applications for Pokémon Go in March. Nintendo will only continue to grow its universe by bringing more of its graphics, sounds and products into this smartphone world.
Who owns the augmented elements placed on private property and in public places?
Looking at Pokémon Go from an intellectual property standpoint, several questions arise. The first question that must be asked involves the creation of creatures, objects, and places and their placement throughout our physical world.
After pulling Niantic's Terms of Service, with respect to content ownership, Niantic expressly states the following:
Niantic does not claim any ownership rights in any User Content, and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Niantic and its licensors (including TPC and TPCI) exclusively own all right, title, and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or Content.
Yet, despite this acknowledgement, it still fails to address other questions regarding ownership and content.
Attempting to dive into the first question, does placing an AR element, be it a Pokémon creature, Pokémon item, or even transforming a location or property into a Pokestop, without the property owner's permission, affect the exclusive right to possession in his or her property? All property owners have a "bundle of sticks" or rights in their property. The most well-known is the exclusive right to possession. By placing these AR elements and objects onto another's property without the consent of that property owner, the developers have now affected all property owners residing in the United States and abroad, exclusive right to possession in their own property as against others. Specifically, people are now wandering onto each other's property looking for Pokémon to catch or places to gather to catch these creatures, which has divided people into two categories: (1) those who are aware they are going onto others property, but are too enthralled and engaged in the game to pay attention to that fact, and (2) those who are aware they are going onto other's property, but do what they need to do to catch that Pokémon. Consequently, this has resulted in people physically walking into another's home, business, church, museum, and even memorials and funerals…clearly places that are inappropriate for such behavior.
Through the news and media coverage, and also playing the game for a few days myself, the answer is an absolute yes. This game does in fact affect property owners' rights in their own property to which they have the right to physically exclude others from intruding upon their land. Unfortunately, with the early start of this mobile game, we will have to wait as more bizarre stories unfold and cases start heading to courts.
Second, we must then ask, does owning property in the real world, our world, transcend or extend those property rights to the AR world along with any associated intellectual property elements that the developers place on it?
 Again, I must answer in the affirmative. The augmentation of a Pokeworld on top of a Google Map overlay, which, per the developers, is an accurate map of the real world and locations as a result of the GPS function of our smartphones, and has not forfeited our property rights, simply because we are in a cyber-universe via a smartphone. Furthermore, to play the game, users have to sign in with their Google email accounts, which uses IP addresses. We are not forfeiting our property rights, simply because, for players to participate in this game, they are using their own email accounts to manage their profiles, another property right.
The most important question that I feel will not be answered until the courts get involved is the idea of consent. Obviously with mobile app developments, outside sources attempt to breach, hack or find ways to publicize vulnerabilities in the program. On this notion, the application requires updates. As these updates are pushed out to the Apple Store and Android Market, users will update their games. However, the more developers update, the more AR objects and elements are placed into the game, or in other words, on other people's property, be it private and/or public.
Consequently, do we as property owners have the right to refuse permission to developers in that we do not want an AR creature or object placed on our property? Again, my answer is in the affirmative. In the terms of service, Niantic, Inc. has relieved itself of any liability resulting from the usage of the game, whether it be property damage or personal injury, yet it does not think twice about placing AR elements onto the public's property. This is problematic. We have a right to refuse the placement of objects on our property to prevent others from trespassing and obstructing our property, which has already led to serious injuries and other crimes.
The next step in this analysis is the proper way in which to address this directly with the developers. Do we all need to sign a contract, or should there be another disclaimer in the pop-up terms of service, stating that property owners have a right to refuse consent by simply reporting that they'd like for an object or their property to be removed from gameplay elements? However, this shifts a heavy burden to the developers to change gameplay elements and re-release an update addressing these concerns. There will be hundreds of updates a day, which will create yet another issue: What happens if property owners report and refuse consent, yet an incident occurs on their property within a period before the next update addressing this is pushed out to the public?
This game has created an endless realm of legal problems for not just the public, but also for the developers. These concerns must be addressed now before the game becomes any more complex and developed.
The developers, by creating and placing augmented objects on property, have created liability under the attractive nuisance doctrine
Ohio is one of several states that has adopted the attractive nuisance doctrine. Ohio courts have consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. Under the doctrine, landowners are required to eliminate dangerous conditions on their land that attract children. The rationale is that children may not appreciate or understand the danger the land or item on the land brings. Individuals who fail to correct or eliminate that danger on their property are civilly liable for any injury the child sustains on it, even if the child was trespassing. In conjunction, the Bennett case also extended the doctrine to adult rescuers injured or killed while attempting to assist or rescue children endangered by an attractive nuisance.
The obvious question that has presented itself is, does placing an augmented object or element on another individual's private property without his or her permission invoke the attractive nuisance doctrine? To whom does the doctrine shield or not shield? Let's try and break down the possible scenarios.
Should property owners, whether they are owners of businesses or private residences, be held civilly liable due to their failure to reduce or eliminate the danger that "lures" these "trainers" to their property? Is it even fair to require property owners to be aware of the augmented reality around them? How far would this duty extend? Should it extend to just Pokémon placed on their property without their consent? What if their property is transformed into a Pokestop without their consent?
The main question this doctrine invokes is whether these property owners will eventually have a duty to warn others that there are Pokémon on their property. If this duty comes to pass, another troubling issue presents itself…how frequently should the property owners check this game to see if new Pokémon have been placed on their property?
Pokémon Go has categorized its users by appealing to their particular interests. The craze has stirred in children, teens, and surprisingly, the adult generation who originally grew up in the Pokémon generation.
Let's first address the potential effect of the doctrine on young children. Most frightening, children much younger than you and I were back in the day are now walking the streets with smartphones. While this article is not an attempt to attack the disciplinary measures parents instill in their children (or don't), the truth of the matter is, children are holding a dangerous world in their hands, subject to the entire world of the internet. First and foremost, we are dealing with another generation of children who surprisingly, are still keeping the Pokémon world alive and are still infatuated with the pocket monster world. We still see the Pokémon toys, the Pokémon cards, the Nintendo DS games, and of course, the TV shows and movies being sold and broadcast. The very nature of this application is an automatic download and smile on these children's faces.
Another problem is that some parents have children who truly want to go out and "catch" Pokémon, but are going out on their own without supervision and may find themselves in places they normally wouldn't be. Furthermore, they may even stroll onto another individual's property without appreciating the possible hazards that an adult habitually encounters, such as construction, remodeling, pets and more. Last, what happens if, regrettably, the child becomes a victim of criminal activity? This type of child engagement invites not only danger, but rescue. Ohio also shields adult rescuers if in the course of rescuing a child, they are injured. As such, the adult is treated as a child and is protected.
Last, we address the stars behind this nationwide craze, Niantic, Inc., Nintendo, Ltd., and The Pokémon Company. While collectively, they wanted to revive the Pokémon craze, they also birthed another demon. The developers have created the very danger we have started to see on the news and on our streets, just in the past week during its launch…they have created hazards on private property, public streets, and other public places. So, the million-dollar question, should Nintendo and Niantic be held civilly, and potentially, criminally liable for creating the danger that attracts young children to hazardous situations? For creating the danger that large groups of people in a public place create a target for criminal activity? For creating the danger of a small group of people or an individual walking into a dark alley, driving off a cliff, or even getting stabbed in the process of trying to catch the detection of a rare Pokémon?
While the developers have attempted to shield themselves of any liability by means of an opening disclaimer, it still doesn't seem to be getting through to its users. Every time the game is opened, a warning from Niantic pops up, telling players to be aware of their surroundings. Users must also agree to the very fine print stating they cannot enter private property without the owner's permission. Furthermore, Niantic, Inc. further expressly disclaims that it is not liable for any property damage, injuries or deaths that result while playing. However, this seems too general and too anticipated based off the nature of the beast it has just released into the wild.
Even if Nintendo and Niantic, Inc. are held to be liable, what kind of liability could even be imposed? To what extent? How would this even be addressed in court? Would class actions be the proper tool? Or would they have to face the flood of trainers suing them individually?
Pokémon trainers around the country are now trespassing on public and private property
The Pokémon Go nationwide craze has people committing crimes left and right, ranging from trespass, to robbery, to stabbings, to domestic issues with cheating partners. What happens when a player appears where he or she shouldn't be and ends up on private property, without permission to catch one of these creatures? People are now wandering into yards, driveways, cemeteries, museums, churches, alleys and even off-limit sites in search of these imaginary-placed pocket monsters. This has led to prompt warnings that trespassers could be arrested, or even worse, seriously injured for coming into contact with an armed property owner.
Under R.C. §2911.21, the crime of trespass is a fourth degree misdemeanor. An individual commits trespass when entering the property of another without permission. Individuals do not have to know that they are trespassing to be held liable for trespassing. The only requirement is that the person physically intruded upon another's land without permission. In Ohio, a trespasser can be anticipated or unknown.
The game has divided its players into both of these categories, so how does a person prove that the property owner knew that person was going to be trespassing or not? Should every player of Pokémon Go be considered an anticipated trespasser under Ohio law, simply because most people know this game due to news coverage and mobile store downloads?
On the flipside, how do property owners distinguish between a random person on their property having business or motives other than that of catching a Pokémon? To whom does liability attach, property owners or the developers, or both?
Clearly, a person or player who trespasses on another's property is guilty of criminal trespass, regardless of his or her intent. However, should there be a defense of "but I was playing Pokémon Go?"
The most troubling issue of course is that property owners clearly have not given developers express consent to placing these creatures on their property. However, in augmented reality or cyberspace, do property owners even have a property right claim where an augmented world has been placed over a Google Map program? Is it the same as using Google Maps, Apple Maps, or any other GPS map program in the real world? Does owning property in the real world extend to ownership in an augmented world, where GPS essentially links real world places into the augmented world?
While the developers have expressly disclaimed any and all liability in their initial login disclaimers, it is clear that isn't stopping many people. The fine print doesn't seem to be enough. Why shouldn't Nintendo and Niantic, Inc. be held responsible for intentionally placing augmented creatures on another individual's property without that owner's permission? To play devil's advocate, is simply downloading the game and agreeing to the terms of service a contract or implied consent for the developers to constantly update its Poke-database, which may include the possibility of creatures and people ending up on your property? But, isn't this the very definition of trespass, or at least cyber-trespass? I know individual states who have enacted cyber-crime statutes, would agree in the affirmative. However, at the end of the day, Courts have a new issue before them on whether augmented reality or cyberspace has caught up to our modern day laws? While it is still complex, there is no reason why this Poke-world shouldn't extend to our modern day rules of trespass. It clearly fits the elements and definition.
Should Pokémon Go fall under state negligence laws?
A negligence claim is a civil lawsuit that a person can bring against another individual who has caused harm by failing to take the degree of care that an ordinary careful and reasonable person would take under the same or similar circumstances. The standard people are held to, is that of a "reasonable person." However, it is up to the jury to decide what a "reasonable person" would do under similar circumstances. If a person is held to have fallen below the reasonable person standard, the Defendant may recover damages for such negligence.
In Ohio, there are four elements to recover on a negligence claim:
Duty of care
First, the individual must prove that the defendant owed a duty of care. In the case of Pokémon Go, it is possible the standard is that of a "reasonable player of a mobile game" or "reasonable player of an augmented reality game." The question depends on who could bring the lawsuit.
If the users or players bring suits against property owners, it would make sense that they would have to show the property owner owed them a duty of a reasonable property owner, albeit private or public. But, does it really make sense to hold a property owner responsible for the actions taken by an irresponsible or naïve player who fails to use common sense when trespassing on property for what purpose? To catch invisible creatures that only exist in a mobile phone game, but not in the real world? Should the property owners have a duty to know that augmented elements such as Pokémon and Pokestops have been placed near or on their property? Should they have a duty to report this to the developers for removal or to higher authorities, or even placing warning signs on their property?
If the property owners bring suits against users or players, it would make sense that they would have to show that the user or player owed the property owner a duty of a reasonable player of a mobile game. To counter the argument made above, does it make sense for a property owner to react in the ordinary way one would in dealing with a trespasser? After all, what harm is this "trespasser" committing other than coming onto the person's property to then take a picture of a Pokémon, and then leaving immediately after (hopefully)?
Unfortunately, this is not a question that will be immediately answered until someone decides to take the case, whatever the facts may be, to court.
Breach of duty
Second, the individual must prove that the Defendant breached that duty. A breach is a showing that the defendant failed to live up to that standard. Again, what sort of breach should courts look for? How can a mobile game player breach a standard that technically has never been imposed with smartphone games? How can a property owner breach a standard that a property owner technically has never been held to when it comes to people playing a mobile game…that involves their property? Does the property owner have a viable defense of assumption of the risk? Players should be aware of the dangerous and inherent risks associated with playing this game not only for themselves, but also at the expense of other players' desire "to be the best."
hird, the breach of that duty must have been both the actual cause and proximate cause of the harm. Actual causation is determined under a "but for" analysis…but for the act or failure to act, the harm would not have occurred. Proximate cause is the foreseeability of that injury in the chain of events.
It is clear that with the latest craze of Pokémon Go players wandering the streets trying to "catch" these creatures, that it is foreseeable that people will be trespassing on other's property, people will be gathering in public places in large numbers for get-togethers, bar crawls, and Pokémon go clubs in hopes of catching rare Pokémon at the newest Pokestop. For example, the latest gathering was in Central Park in New York, where hundreds of people gathered in an attempt to catch a rare Pokémon, Vaporeon, which resulted in a stampede.
Unfortunately, this is not the last we have heard about stampedes and large gatherings. We are on the countdown until the next Pokémon Safari gathering ends up in another public place and private property.
There must be damages, whether they be personal injury, property damage, or both. Clearly, there has been serious injuries and property damage as a result of this game's launch and success. Personal injury resulting from stampedes, stabbings, robberies, car accidents, falling off cliffs, and even more serious criminal activities.
At the end of the day, who can be held liable for the injuries, stupidity, naivety, carelessness, and excitement of these players? It is clear that the players have a duty to be aware of their surroundings at all times, but the line is a bit greyer when it comes to property owners and the developers.
For those of you who have failed to see the carelessness and dedication to this game, remember the headlines from just this past week:
- Pokémon Go: Crowd Stampedes Through Central Park After Rare Vaporeon Sighting
- Pokémon Go Craze Raises Safety Issues
- Death By Pokémon? Public Safety Fears Mount As Pokémon Go Craze Continues
- NYPD Shares Pokémon Go Safety Tips
- Four NYPD Cops Are Under Investigation for Apparently Playing Pokémon Go On-Duty
- Florida Teens, Mistaken for Thieves, Shot At Playing Pokémon Go
- Pokémon Go Players Find Corpse in San Diego Park
- 2 Men Fall From Cliff Playing Pokémon Go
- Man Stabbed While Playing Pokémon Go and Keeps Playing
- Toronto Bakery Charges Customers Differently According to Their Pokémon Teams
- Police: Someone Threw Fireworks at Pokémon Go Players
- Trio Gets Locked in Cemetery While Playing Pokémon Go
- Daughter Hit By Car While Playing Pokémon Go
- Girlfriend Catches Cheating Boyfriend Through Pokémon Go, While Catching Pokémon at Ex's House
- 19 Year Old Pokémon Go Player Happens Upon Dead Body in Wyoming River
- Places You Really Shouldn't Play Pokémon Go
- Pokémon Go Might Be The Answer to America's Obesity Crisis
What kinds of crazy battles can we expect in the future?
Is Pokémon Go the start to more developers trying to compete and create their own AR applications, games and devices? It seems that the global success of this game will definitely spur inventors to play catch up. Before we know it, there will be Legend of Zelda Go, Game of Thrones Go, Walking Dead Go, and anything else that people can take from our television, movies and games.
Yet, the same issues will remain until it forces legislators and courts to continue addressing the grey areas in that our laws have not yet caught up to cyberspace, or in this case, augmented reality. Hackers will continue hacking applications of this type to exploit the vulnerabilities AR presents. People will continue questioning how this application affects user's private data, especially since it's connected to Gmail accounts, IP addresses and GPS enabled phones. Our streets, homes, businesses and public places will continue to be a hub for criminal activity and injuries.
How will the First Amendment impact players' rights in retrospect to the developers' freedom and right to create? Players have a right to download a game on their phone along with their equal right to play the game. Similarly, inventors have a right to create and invent without restriction. To counter, what happens when the First Amendment right to create starts to interfere with the safety and welfare of others?
This will hopefully force legislators and courts to modify laws to include our digital age. Augmented reality brings in many areas of law that we as society are still trying to understand on a daily basis: data privacy, cyber security, cyberspace, intellectual property and the First Amendment. How do we expand our statutes and laws into the ever growing realm of cyber-space? Do we need to create new statutes specifically targeted at AR and cyber crimes such as playing Pokémon Go to target potential victims/players?
Time will tell.
By Andrew Rossow, an attorney in Dayton. This article was written for purely educational purposes and is strictly the opinion of its writer. In no way does this article lend itself to give legal advice to its reader(s), but to inform its readers of the concerning ramifications augmented reality will begin to have on mobile devices, its users and the legal system.
http://www.newyorker.com/tech/elements/pokemon-go-will-make-you-crave-augmented-reality; see also
http://www.newyorker.com/tech/elements/pokemon-go-will-make-you-crave-augmented-reality; see Brian D. Wassom, Esq.'s article similarly addressing the issues of AR at his website,
 See Intellectual Property Attorney, Susan L. Crockett, Esq.'s article on the IP at play,
 Bennett v. Stanley (2001), 92 Ohio St.3d 35; see also
Restatement of the Law 2d, Torts, Section 339, 1965
 Ohio Rev. Code §2911.21; see also
http://www.usmagazine.com/celebrity-news/news/pokemon-go-crowd-stampedes-after-spotting-rare-pokemon-w429525; see also
http://www.foxnews.com/tech/2016/07/14/death-by-pokemon-public-safety-fears-mount-as-pokemon-go-craze-continues.html; see also
https://www.washingtonpost.com/news/the-switch/wp/2016/07/12/holocaust-museum-to-visitors-please-stop-catching-pokemon-here/, where Pokémon Go players visit Holocaust Museum to catch Pokémon; see also
http://wtop.com/mobile/2016/07/who-thought-it-was-a-good-idea-to-put-pokemon-go-in-the-holocaust-museum/; see also
http://www.rollingstone.com/culture/pictures/pokemon-go-10-worst-pokestop-locations-20160713 ; see also
http://www.bbc.com/news/uk-36806795, where Church of England signs up to be a Pokestop, hoping to encourage players to come through its doors; see also
http://time.com/4403516/pokemon-go-911-memorial-holocaust-museum/, where players flocked to 9/11 Memorial in New York City.