The Legal Issues Surrounding Pokémon Go

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

The Legal Issues Surrounding Pokémon Go

08/05/2016

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Brian Wassom: It’s obviously directing people around town and that’s raising all sorts of issues, sort of traditional issues people when they use to walk around town and trespass and create problems there for other people, property, trespass issues like I mentioned in the intro. Criminal type issues, people walking in the trouble with the police thinking they had been doing things or people being where they shouldn’t be. So there is a whole host of things that come out of this new type of augmented reality gaming.

But to me it just, to the tip of the iceberg on how AR is going to affect our daily lives, it’s a medium just like the Internet is and it’s going to affect daily life I think just as extensively as the Internet has to modern society and the legal issues that come with them are going to be exciting.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.

You are listening to Legal Talk Network.

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J. Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network, I am Craig Williams, coming to you from Sunny Southern California. I write a legal blog called May It Please the Court.

Bob Ambrogi: Hey, this is Bob Ambrogi coming to you from Boston Massachusetts, where I write a blog called LawSites, and we also co-host another Legal Talk Network program called Law Technology Now along with Monica Bay.

J. Craig Williams: Well, Bob, before we introduce today’s topic we would like to thank our sponsor Clio. Clio is the world’s leading cloud-based legal practice management software. Thousands of lawyers and legal professionals trust Clio to help grow and simplify their practices. You can learn more at  HYPERLINK “http://www.clio.com” clio.com.

Well Bob, the Pokémon App developed by Niantic is the latest craze sweeping the world. The location-based augmented reality mobile game app, well, that’s a lot of adjectives, produced the 15 million downloads in just the first week. The game allows players to capture, battle, and train virtual creatures called Pokémon who appear on device screens as though they were in the real world.

Bob Ambrogi: Well, unfortunately the app is listed in not only downloads but already starting to elicit some legal problems. Just today I was reading a story about a Pokémon Go player who said, “Cops with their guns drawn has took him for a robber and searched him at gun point”, and that’s just one of many issues from trespassing a property, supposed muggings, driving distracted, walking into traffic falling from cliffs are just some of the incidents, I guess that’s not funny.

Some of the incidents stemming from the use of this app, and in addition businesses are tracking customers by adding fantasy characters to their stores. So perhaps that raises the questions of liability as well.

So today, on Lawyer 2 Lawyer, we are going to look at this latest craze in apps, Pokémon Go, and look at the legal implications surrounding this popular app, including incorporating reality into a fantasy world and whether Pokémon Go is here to stay or simply a flash in the pan.

J. Craig Williams: Well Bob, to do so, we’ve got two great guests today. Our first guest today is Professor Adam Thimmesch, an Assistant Professor of Law at the University of Nebraska College of Law. Adam focuses his research on the impact of modern technology and markets on existing legal doctrines with a particular emphasis on tax policy and the regulation of Interstate Commerce.

Welcome to the show, Professor Thimmesch.

Professor Adam Thimmesch: Thanks, happy to be here.

Bob Ambrogi: And next we have Brian Wassom from the firm Honigman Miller Schwartz and Cohn in Bloomfield Hills, Michigan. Brian is the leader of the firm’s social, mobile and emerging media industry group. As a litigator with 15 years of experience focusing his practice on intellectual property matters related to copyright, trademark, trade dress, and publicity rights. He also handles many other types of complex commercial litigation cases, including invasion of privacy, defamation, false and deceptive advertising, data security, and product liability issues.

Welcome to Lawyer 2 Lawyer Brian Wassom.

Brian Wassom: Thanks, it is good to be here.

J. Craig Williams: Well, as we start out, Adam, let’s start with you and approach the issue of what really Pokémon Go is, I mean, I don’t play it and I don’t know how many other people that are listening don’t play it, but let’s assume that they don’t describe what the program is and why people are getting into trouble?

Brian Wassom: Well, that’s a good question it means a lot of different things to different people I think. At one level it has taken this idea of augmented reality and throwing gaming creatures that people have grown up with.

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And you download the app on your phone and you walk around town and try to track these things, the app uses your GPS and your camera and you get near one of the digital signatures for these Pokémon characters and you pull out your phone and it pops one up on your camera and you have to flick your thumb and capture it and then the games are on from there, I guess.

So it’s obviously directing people around town and that’s raising all sorts of issues, sort of traditional issues people when they used to walk around town and trespass and create problems there for other people, property, trespass issues like I have mentioned in the intro. Criminal type issues, people walking into trouble with the police thinking they been doing things or people being where they shouldn’t be. So there’s a whole host of things that come out of this new type of augmented reality gaming.

Bob Ambrogi: Well, even more important question is, have either of you actually played it yet?

Professor Adam Thimmesch: Well, I have. At first just to be able to know what I am talking about, when I talked to folks about it but also because it is kind of a diverting pastime at least as much as Candy Crush or any other mobile game that folks might play and my kids who are young they really get into it too, so it actually turns into a pretty entertaining family activity.

J. Craig Williams: You haven’t walked off any cliffs yet or the middle of the road or –

Professor Adam Thimmesch: Not yet, but even when you are aware of the issues it’s surprisingly easy to bump into something when you are not paying attention.

J. Craig Williams: I can imagine.

Brian Wassom: I actually sort of realized that this is going to be an issue on our end. I woke up on a Sunday morning and I was seeing a bunch of people on Twitter talking about this app and I thought, oh, my kids might like this and I downloaded the app and the first thing we did is follow a Pokémon right into my neighbor’s yard across the street and the light bulb went off over my head and I said, all right, this is a problem, I am standing outside my neighbor’s window at 6 a.m. on a Sunday morning, we might want to think about this a little bit.

Bob Ambrogi: I guess what I don’t understand about it, I haven’t played it, is how do the characters get placed where they get placed? Is that something that the app programmers are doing or is that something that the game players are doing?

Professor Adam Thimmesch: Well I can address that, the characters themselves are pretty much from what I can tell anyway, randomly generated based on your location. I think that would be more likely than not to show up in certain places, but there are also these way stations called PokeyStops that are fixed locations in geographic space and there are destinations in the game, you go there to recharge your items and there are often more Pokey characters in the vicinity of these PokeyStops and those geographic coordinates have actually been user-generated but not through this game.

Pokémon Go is actually built on the infrastructure of another game that’s been out for the past four years called Ingress, published by the same company Niantic and had people doing pretty much the same thing. Going to these places, interacting with the way stations in a somewhat different fashion, but same general principle, it had a sci-fi theme to it and it had a very cold following, it still does really within a niche group of people. What will make that game different from this is that Pokémon is a brand; it’s a creative content that people recognize.

All that data, all that geographic data was already plugged into the software, they just re-skinned it with a different copyrighted content and off it went.

J. Craig Williams: And what are Pokémon Gyms? I understand that those are another feature of the program.

Brian Wassom: So the Pokémon Gym is a little different than those PokeStops. The Gym is where users will actually go to sort of fight over a location. So the whole point of this acquiring these Pokémon other than just getting them is to do battle with other Pokémon users and these Gyms are places, again, they are geographically sort of set by the program. There are places where users can congregate and then they sort of digitally battle it out. You choose teams and you digitally battle your digital Pokémon for control, whatever that means of these Gyms.

So, sort of from the legal side and thinking about the issues they are very similar to the PokeStops. There are places that are set by the developer, they are generally public geographic locations that are set and sort of draw people there to advance in the game.

Bob Ambrogi: So one of the first legal issues that keeps coming up I think is this question of Pokémon Go players wandering onto private property without permission. So what are the legal issues there and who is responsible if there is some wrong doing there, if players are being led on the property by this game are there legal implications to that and what’s the responsibility?

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J. Craig Williams: Especially if Niantic is the one placing the Pokémon on someone else’s property.

Bob Ambrogi: Yeah, that’s what I am trying to understand.

J. Craig Williams: So Adam or Brian, I will throw that out to whoever wants to take it.

Brian Wassom: Sure, I will take first stab and if Adam wants to jump in, that’s great. It’s the same issue as anybody wandering around in real physical space, and like you said, trespass. In real property you can draw a dividing line between who owns what property and who owns the neighboring parcel, and if you wander into somebody’s parcel without permission you are liable for trespass. So I think that in the first instance and in the main it’s going to be the people actually doing the trespassing who are going to have to worry about any kind of liability.

Niantic certainly attempts to insulate itself from liability through its terms of use, which would give people a heads-up to say, hey, you are responsible for where you go, for watching where you are walking, that sort of thing, and those are subject to the same arguments really as any other term of use as to whether they are read and agreed to and so on and so forth.

The interesting issues from a legal perspective, from a lawyer’s perspective are always, well, who else can I tag with liability for this, and where Niantic or any other game publisher of a similar type of AR game system, where they might face liability is an interesting and untested question, and it’s really going to have to do in a fact by fact — case by case type of situation and analysis of just how much role they had in encouraging people to go there and not giving adequate warnings.

But I think it’s going to be a pretty uphill battle to tag a company with liability here for something that somebody ultimately physically chooses to do in wandering into somebody else’s property.

J. Craig Williams: Where does this program fall on the scheme of — as an attractive nuisance? It seems to me it certainly would be an attractive nuisance and the liability that it creates could flow back to Niantic, why would you not think that?

Professor Adam Thimmesch: So one of the things they have also built into the program that I think is important, beyond sort of the terms of use and trying to have people assume the risk themselves, is they have built in the actual distance factor, so anything that appears — sort of appears within this 40-meter area.

And so one of the ways they have designed the program is to say, all right, it might look like that Pikachu or whatever your favorite Pokémon character is, I don’t know too many of them, so we will go Pikachu, looks like it’s on somebody’s property, but it’s not. You can find that anywhere within 40 meters of wherever the digital signature is.

So another thing that they have sort of built into the program is that that you can actually achieve this. You don’t need to go up to your neighbor’s window. So it’s just another design aspect.

But I think you are right, as far as thinking about it, it travels down the line. It looks a lot like what we would think of as an attractive nuisance. You are putting something out there. This is a game that is aimed largely at kids, although I hesitate to say that as I am on a college campus and a lot of the college students now, I wouldn’t necessarily call them kids, but they grew up in an era where they played this and they are playing it on campus a lot.

But you have this user base that does involve young kids and some of those arguments for liability I think get a little bit stronger when you are appealing to kids, you sort of get back into the more classic, attractive nuisance case law, the neighbor’s pool, things like that.

So I think they do get closer on the spectrum, but as Brian mentioned, with the terms of use, with the fact that the individual user does have some probably negligence of their own, they are playing a part there, it does seem like it’s going to be an uphill battle to actually get liability back to the developer.

J. Craig Williams: One of the news reports I saw about this was, again, I think just today saying that in Berlin the Catholic Church has hired a lawyer to tackle a plague of Pokémon Go players invading the Cologne Cathedral and they have taken legal action to ask the company, Niantic, to exclude the property from the game.

Do we know, is that something — that seems to suggest that Niantic has that ability to exclude specific properties and it seems like that could raise, again, further liability issues for the company if it doesn’t respond to those kinds of requests?

Brian Wassom: Well, I hope they don’t, because the Catholic Church in my neighborhood has four PokeStops in it, the best place to recharge.

But at some level, I mean, people are going to be making these requests. I am sure this is only the first of many. I am sure Niantic has a good defense and one that they have probably thought through quite a bit, and the fact this is all user-generated content, so ultimately they may have some installation here under Section 230 of the Communications Decency Act for just simply hosting this stuff rather than actually altering the content.

(00:15:07)

That remains to be seen if that’s available here. And on the flip side, it’s not as if anybody can just choose a PokeStop and upload it, there are certain locations that they have chosen based on whatever criteria and those are more or less fixed. You don’t see new PokeStops being added. So if they don’t allow users to just randomly add them, then they may have a role in publishing them and they might want to be more sensitive to these takedown requests.

I imagine that especially when requests like this get sufficient amount of publicity, they are not going to want to court controversy by maintaining those. And in fact, in the Ingress game I know that they have in fact reacted to user feedback and removed certain stops.

All of this stuff is based on user input so they can’t verify it, and when, for example, they put a stop point in the Ingress game in front of a hospital’s ER driveway, a place where you physically could not access it without putting yourself in danger, they changed it, they moved that spot based on user feedback, so if there is enough of a complaint I think they will take action.

J. Craig Williams: What happens when individuals get taken advantage of through this game? Obviously there are some businesses that are putting Pokémons in their business and there are also some criminal elements that are putting Pokémons where it puts people at risk. Does Niantic have any responsibility for that or is it simply buyer beware and caveat emptor?

Brian Wassom: From my view it’s mostly the latter, mostly the user takes the responsibility on themselves. I mean, this is a fixed map and space. Niantic is in-charge with policing the conditions in those areas.

On the other hand, there could be a set of facts where may be it could be argued that they or another publisher should have known better. I have kind of speculated about these fact patterns too in the book I wrote on this subject, and there are other examples of AR games out there where the publisher is more involved and encouraging and almost requiring players to go to specific places in space, and at that point there is a better argument for saying they had some responsibility for maintaining the safety in that area.

J. Craig Williams: Well, gentlemen, we need to take a quick break before we move on to our next segment and we will hear a message from our sponsor.

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining my co-host J. Craig Williams and I today to talk about Pokémon Go and the legal issues are Professor Adam Thimmesch, Assistant Professor of Law at the University of Nebraska College of Law and Brian Wassom from the firm Honigman Miller Schwartz and Cohn.

I wanted to ask about the potential government regulation of Pokémon Go play. I have seen a couple of articles questioning whether this might happen in a sense that if you have too many Pokémon Go players wandering around a public space, a park or a city square or something of this sort, they could start to get in the way of people who aren’t playing Pokémon Go or become a kind of a nuisance to those people. Are we at all likely that we are going to see government stepping in here and trying to in someway regulate Pokémon Go, and if so, do we start to face, I don’t know, First Amendment issues around that?

Professor Adam Thimmesch: Yeah, I guess my thought on that is I want to take a wait and see approach and see how long this lasts. Obviously it takes a lot to get a move like that and it either takes something really big to get movement in the short-term or some significant event or prolonged period.

I am not sure. I don’t know how long Pokémon Go craze is going to go. I imagine that this type of gaming, in general, people will figure out that this is making a lot of money. And so if we see the augmented reality type gaming take off, I think then we might start to see more movement in there, but in the short-term I think that we will probably see, but who knows, some restraint as people just try to figure out exactly what’s going on and how to craft these.

But I think you are right that there are normal sort of issues here about regulating public spaces.

(00:19:53)

Here in Nebraska we had people jumping the fence of the football field to go in because there were great Pokémon there, and so what they did here is they just opened it up. They said, all right, we have got an afternoon for a few hours, come on out, catch all you can catch, and they handled it that way, rather than trying to come up with some more heavy-handed legal approach. They have the laws on the books obviously.

And so I imagine that cities and different public places will come up with softer solutions to work with the public, unless you really see this really take off and this is an ongoing issue.

J. Craig Williams: How effective are the terms of service and the end user license agreement in this circumstance? Can Niantic really rely on those, which I imagine are largely unread by the general public, can they rely on those disclosures and waivers?

Brian Wassom: Well, I mean it’s tough to give an opinion and one specific fact scenario. Their terms and conditions are not unlike the ones that were used for Ingress or any other type of game of this nature or any other mobile app for that matter. You kind of have to go looking for them in most instances.

In this game it does pop up when you first log into the game, when you first register for an account, you are forced to look at the screen. As I recall, I think you have to click the Agree button, and by and large in every case that’s considered that issue, you are forced to give some affirmative consent. It’s on you what’s in those terms and you are generally held to them.

Professor Adam Thimmesch: Yeah, there is always a public policy angle to that, if it’s determined that these things get too overbroad or there is some way that this particular type of clause is being applied in these applications, you could see some pressure on that, but I largely agree with that. We generally accept even on these apps where you are just clicking through and downloading and so you need to go beyond. There needs to be something extra about this case that will push a judge to look beyond it most likely.

Bob Ambrogi: What about a very different kind of legal issue here which is the privacy of the users who are playing Pokémon Go. My understanding is that this game is accessing quite a bit of the user information on their mobile device, not just the game, but maps and contact information even and other personal information. Are you seeing overreaching here on the part of the game’s developers and do you see legal issues arising out of that?

Professor Adam Thimmesch: I think one of the nice things we saw with this actually, they came out, there was original press about — for certain users it was accessing your entire Google account so it could scan all of your emails and everything and your Google Docs, and there was a bunch of press about that, and what you saw was a real quick response by the company to say, you know what, we don’t need that. We are going to carve back on it.

And so whether you think that’s sufficient or not, it is an area where you saw, again, a soft solution here, but largely in the US it’s buyer beware type situation. There is not a broad right to privacy in these matters. The applications tell you what permissions they want and a user accepts it or not before download, and so short of resorting to that sort of public pressure, there’s not a heck of a lot a user can do in that situation.

J. Craig Williams: Other than not play.

Brian Wassom: And they are pretty upfront with what they collect. You can open up any of the Pokémon you have collected in the game and you can see on a map the exact point in physical space where you captured this Pokémon, the date you captured it, which lets you know that they are tracking all this information too. They are watching you on a map and seeing how players use the game and I am sure they are adapting the game accordingly.

J. Craig Williams: Well, it looks like we have just about reached the end of our program so it’s time to wrap up and get your final thought. So Adam, let’s start with you.

Professor Adam Thimmesch: Yeah, I guess it’s just interesting for me as someone who thinks about the law and teaches the law how many different areas that an app like this touches, and I think a lot of our first instinct is to go crazy about how this is going to change everything, and when we step back and look at it oftentimes we find that our existing legal doctrines and existing rules apply perfectly well, a trespass is trespass.

But it is interesting to see where this pushes and it is interesting to see if it stays, and if so, I think we might see some new norms develop and we might see some actual laws develop to the extent that this sticks around and augmented reality starts disrupting more people’s lives.

J. Craig Williams: Great. And let’s get your contact information as well so our listeners can reach out to you if they would like to Adam.

Professor Adam Thimmesch: Yeah, I am at the University of Nebraska College of Law, so I have got a profile there at  HYPERLINK “http://www.law.unl.edu” law.unl.edu. I am on twitter @AdamThimmesch.

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J. Craig Williams: Great and Brian?

Brian Wassom: Sure. So I am a lawyer who has been thinking about augmented reality law issues and blogging on them for the past six years now. So Pokémon Go doesn’t so much excite me for what it is, it’s spur of the moment fad right now that’s going to fade sooner or later, I am sure. But it’s exciting to me and it’s exciting to the other people in the AR industry that I work with on a daily basis, because it has finally brought AR into the mainstream consciousness. I mean, these issues have been out there for a long time, but we wouldn’t be talking about them right now if it wasn’t for Pokémon Go. So we are excited for that reason.

But to me it’s just the tip of the iceberg on how AR is going to affect our daily lives. It’s a medium, just like the Internet is, and it’s going to affect daily life I think just as expensively as the Internet has to modern society. And the legal issues that come with them are going to be exciting. Just like Internet law, it didn’t — like Adam said, it didn’t create brand new legal principles, but it sure did stretch and reshape and recast some of our long-held legal principles in a new context.

J. Craig Williams: Great. And your contact information.

Brian Wassom: So you can find me at  HYPERLINK “http://www.wassom.com” wassom.com, that’s where I blog, and I am available on Twitter @bdwassom.

J. Craig Williams: Great. Thank you very much. Well, that brings us toward the end of our show. Bob.

Bob Ambrogi: I would just like to thank our guests. We have been speaking with Professor Adam Thimmesch, Assistant Professor of Law at University of Nebraska College of Law and Brian Wassom of the Law Firm Honigman Miller Schwartz and Cohn. Thanks to both of you for your time and for your insights on this topic. I appreciate it.

Professor Adam Thimmesch: My pleasure.

Brian Wassom: Thanks for having me.

Bob Ambrogi: And that brings us to the end of our show. This is Bob Ambrogi on behalf of Legal Talk Network and J. Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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