Pokémon’s Evolving Legal Landscape

Episode Notes

Transcript

Above the Law

Thinking Like a Lawyer

08/11/2016

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice talking about legal news and top culture all while thinking like a lawyer, here on Legal Talk Network.

Joe Patrice: Hello! Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law, and once again, I have my usual compatriot Elie Mystal.

Elie Mystal: “Summertime, and the lvin’ is easy.”

Joe Patrice: It’s not at all because it remains just as hot as it was earlier this week.

Elie Mystal: Oh, I don’t mind this non-European weather.

Joe Patrice: Uh! No, no, no. It needs to — listen, there is a reason why Fall is the greatest of all the seasons; it’s just right.

Elie Mystal: Because things are dying, I am not with you there.

Joe Patrice: I mean, well yes, things are dying, but you have got — you have still got a few warm days, but those warm days usually top out at a reasonable amount. There is a nice cool breeze, there is better sports on, there is really nothing wrong with the Fall.

Elie Mystal: If I want to read I go to school. Hey! What are we talking about today?

Joe Patrice: What are we talking about beyond — I didn’t know if were — had anything you were mad about before we got —

Elie Mystal: Oh, that’s right. I do have something that I happened to be angry about today.

Joe Patrice: Oh yeah?

Elie Mystal: Right. So I am going to get a little bit of pulled up with my resume because I went to Harvard and I’d like to say that as often as possible. I have a degree in Law from Harvard Law School, I have got a degree in Government from Harvard College. Do you know what the most consistent question I have gotten on social media with all of my education, asking me to put forth all of my education behind? You know what the most consistent question has been in the last few weeks?

Joe Patrice: I don’t know.

Elie Mystal: Can I get in trouble for playing Pokémon in wherever? Wherever! That’s the question that they want me to bend my considerable talents towards. The second most popular question I will have you know is whether or not Kim Kardashian was legally allowed to record Taylor Swift?

Joe Patrice: Yeah.

Elie Mystal: That’s where we are. The national conventions are happening, cops are shooting people, but no, no, let’s talk about Kim Kardashian, Taylor Swift, and Pikachu. Elie, that’s where we are in this country.

Joe Patrice: Well, I mean, yeah. Not to besmirch your degrees, but it’s not like you are the Chair of the Litigation Group somewhere, right? Like, you write on a popular website, the idea that people might want your opinion on popular culture is not insane.

Elie Mystal: The Chair of the Litigation Group might actually have something to say about Pokémon or Kim Kardashian; that might be a client of theirs.

Joe Patrice: Yeah, I guess that’s possible, but yeah, so what you’re saying is you don’t understand basic recording statutes.

Elie Mystal: What I am saying is that I cannot believe —

Joe Patrice: You thought they would have covered that at Harvard, but no.

Elie Mystal: What I am saying is that I cannot believe — is that I’m continually being asked to talk about Pokémon and Kim Kardashian, whatever, whatever. What are we talking about today?

Joe Patrice: Okay. So we are going to talk about Pokémon.

Elie Mystal: Oh God!

Joe Patrice: No, I mean, it is an interesting area. It does open up a whole can of worms, which if you catch enough worms you can evolve them I think into a bigger better worm.

Elie Mystal: Freaking! Shoot me now!

Joe Patrice: So I take it from this you don’t have the game?

Elie Mystal: I have a child, I have the game.

Joe Patrice: Oh okay, yeah. All right. Well, all right, so what team are you?

Elie Mystal: I am not — I am not. I am an American, Joe, okay? I might have a particular version of that, but I am part of this world.

Joe Patrice: Fair enough! Anyway! So Team Mystic for life. Anyway! The point is — so yeah, it’s an interesting game. It is a distracting one. It’s one that’s raised a bunch of headlines and has created a considerable number of various kinds of legal issues. So we thought we would have a show talking about that, and then we have the perfect guest to talk to about with it.

So our guest today is Andrew Rossow. He is an attorney at Gregory Gantt’s Legal Office in Ohio and he just wrote a thing for the Ohio State Bar Association about called Gotta-catch-a-lawsuit. About some of the legal issues that are involved in Pokémon, which is kind of impressive that there’s already papers being written, what, two weeks into the game.

Elie Mystal: Well, after Donald Trump tried to catch John Kasich with a Poké Ball, it really became a hot topic.

Joe Patrice: Yeah. Well, so, welcome to the show, Andrew.

Andrew Rossow: Thank you so much for having me.

Joe Patrice: Yeah. So, yeah, so let’s talk Pokémon Go. Well, first of all, before we get going I guess, since I was just harassing Elie about it, do you have the game or do you just know the legal issues around it?

(00:05:00)

Andrew Rossow: Oh, I have the game.

Joe Patrice: Nice!

Andrew Rossow: I definitely have the game.

Joe Patrice: All right!

Elie Mystal: You should explain it for our listeners who don’t.

Joe Patrice: Yeah. Well, I guess we will. So the game is Pokémon Go, and I actually think I might — this might be a good place to kind of bring up the issues that are raised in your paper actually, because the key to it ultimately is to go around and there is a real map of the real world. You don’t have to sit in your basement and just eat potato chips and play a video game in front of a screen, you actually have to go walk around.

The part of the game is in fact walking and finding areas in the real-life world and then there is kind of algorithmically created creatures that you run across in the kind of the — what they are calling the augmented reality world that you can then catch and you play Pokémon basically just like you always have otherwise. So that’s kind of how the game operates, and you download it on your phone and that’s your fun.

But, there is a lot of issues involved here, and the first one to talk about, and we’ll get to some of the ones that have been more in the headlines, but the one that I thought really interesting about this paper was you talk a lot about the property rights issue of just augmented reality as a concept.

Andrew Rossow: Right.

Joe Patrice: Yeah. So talk a little bit about what the issue is with augmented reality versus reality and how those all fit together in the bundle of property rights?

Andrew Rossow: Sure. Well, I think for our listeners who may not be familiar with augmented reality as it is a fairly new concept that people are just beginning to see, you have to understand what augmented reality actually is, and what it is, is a view of our physical real-world environment whose elements are supplemented or augmented with computer-generated images; sounds, graphics, through an electronic device, and in our situation a cellphone or a smartphone.

And what Nintendo has done or what Niantic has done has taken our cellphones and use the Google Maps interface as its world or as its map, and taken our streets, our parks, our buildings, and basically created their own Pokémon world and put it directly over this Google Map interface.

So as we’re walking down the street in the real world, in their game we are walking down a grassy area or a different city. And I think when it comes to property rights is the ability for these companies to create these elements at any point in time and place them in any location creates issues, because what happens when an element or an object or a Pokémon creature is placed on somebody’s property or business owners’ property and they have no idea and you have more people flocking into these properties, and what can you do about it. Some people welcome it, others are annoyed.

Joe Patrice: Yeah, well, I guess we will talk about the people who welcome it real quick, because that’s probably the smallest of the legal issues.

Elie Mystal: You mean the 08:18?

Joe Patrice: No, I am not, I am talking more like McDonald’s who just announced that they have a deal in the works with these folks, basically they are going to pay Nintendo a bunch of money so that important things happened at McDonald’s. So everyone has to go there.

Elie Mystal: There feels like a distinction without a difference, but go on.

Joe Patrice: So yeah, that’s going on. Some business journals have suggested that small businesses should be quick to get on this before the price goes up and try and get their small businesses in the database so that it can draw more people into their stores and so on, it has a potential to be a real retail magnet.

Elie Mystal: There have been a lot of posts on Facebook that I have seen about people saying that we should put Poké lures at voting booths this Fall.

Andrew Rossow: I saw something similar to that as well.

Joe Patrice: Yeah, I mean, the problem with that is, it’s all well and good to get somebody there in the first place, but then you kind of in voting situations need them to leave after they are done. That may not happen.

Andrew Rossow: Correct, and that’s part of the issue that at what point do you have people that are there just to play the game or people that kind of loiter around and gather and either create unnecessary attention or they just — they become so enthralled with the game, that they don’t realize that it is a problem.

Joe Patrice: Yeah, and one thing you talk about in the paper is the concept of an attractive nuisance, which is next to adverse possession the most fun day of property class, because it’s this concept that you can have something that’s awesome, but since it’s awesome it can bring in everybody in and cause you trouble. And yeah, you have raised that that’s somewhat what these Pokémon are now.

(00:09:57)

Andrew Rossow: Absolutely. I think it’s definitely an interesting concept especially with the different age groups that are now playing this game, I mean you have younger children who have smartphones where as we were growing up, we had phones at a different age and it’s become very different.

Now, where you have kids much younger are having smartphones and doing things that we wouldn’t have been able to do as kids and then you’ve got your teenagers and then your young adults and then your actual adults and those are – our generation who grew up with the original Pokémon fad or club and it’s a problem with the young kids to a lot of the parents who may not know what it is and to the kids themselves that don’t understand that, it’s more than just a game, and when you’re wandering around, either by yourself or with other kids, it creates a dangerous situation whether it’s going on other people’s property or you’re going in locations by yourself that young children shouldn’t or you unfortunately come across a dangerous situation with kidnappings and criminal activity, and that’s something that nobody wants to see.

Elie Mystal: So let’s talk liability for a second, Classic Hypo, Pikachu is placed by the algorithm in a lake, that lake does not have signs saying, No Swimming, that lake does not have signs that there are crocodiles in the lake. My kid trying to find Pikachu, comes upon this lake, jumps into the lake, drowns, gets eaten or whatever. Is anybody at fault? Is Niantic at fault? Is the city at fault for not kind of better securing this lake like who? Is my child at fault for being a dumbass, like who pays?

Andrew Rossow: Right, and I think that’s one of the most difficult questions that I present in the paper is that, at what point do you hold a landowner responsible for knowing that their property has now become a poké stopper, a location that lures children there, and then in your Hypo with the example of a lake, is it a privately owned lake, is it a public lake that you’d see at a park. If it’s at a park, there is no way of knowing that that lake has invisible Pokémon creatures that you can only see in a game and then are you going to hold the city responsible for not looking into that? It’s very hard to say and it’s also a matter of fairness.

But, at the same time if you’re looking at Niantic who is intentionally placing objects out there without even getting permission from these owners, the city and individuals, I think that’s a problem and that definitely is a food for thought in terms of incurring liability.

Elie Mystal: Does it have to do with intentionality; I am not fully up on the tech of this, but as I understand it, most of the Pokémon are placed algorithmically, but there are some that are placed intentionally as Joe was talking about in the McDonald’s example.

Do you think liability turns on the question of whether or not the Pokémon was placed in a potentially dangerous spot intentionally or whether it was generated by the computer?

Andrew Rossow: A little bit of both, and you are then going into two different legal issues potentially, and one is, okay, you have your attractive nuisance where onto that doctrine landowners and property owners are required to reduce or eliminate dangerous conditions on their land that would attract children.

But, on the flip-side if it’s being placed algorithmically by some program then you are looking at negligence possibly and negligence on whose side; is it in the coding of geographic areas that are heavily populated, is it in public places that kids are playing? There are so many endless questions and it becomes very difficult to them to really directly point a finger at somebody, but in the event that the developers have control of where they placed items, I think there is liability to be held, but then again that goes in the coding, in the programming of the application. But especially when it comes to the case of young kids I think there is a higher standard.

Joe Patrice: What are the problems with a lot of the private property stuff? I live in New York, so the concept of actually having property is foreign to me, but hear it, there are obviously dangerous situations to be had here as far as traffic and so on and so forth, but we tend not to have a lot of these issues because we have so many landmarks that exist that it’s okay to just throw a PokéStop on, like the center of Fort Greene Park for instance, the Central Park, there is the outside of business buildings where you can get at things, whereas, if you’re in the middle of a more rural area, you can’t really have many PokéStops without putting it on somebody’s private land.

Andrew Rossow: Right.

(00:14:50)

Joe Patrice: Yeah, and where I was going with all this is that there is a weird kind of — I don’t want to get into like federalism thing but there is almost — there is going to be different legal problems coming up depending on where you are, because a lot of the bundle of problems that exist with Pokémon out in suburbs and rural areas are just distinct from the ones we are going to have here, and I think that’s going to be the interesting thing to develop.

Andrew Rossow: Right. I went to undergrad up in New York; I went to Hofstra University, ironically that’s where the presidential debate is going to be held, and I was fortunate in my freshman and sophomore year to be a part of the first debate and part of the second debate, which is pretty cool, so this will be the third year that Hofstra has it.

But being up in the New York area and the Long Island area, I have to agree with, traffic isn’t as big of a problem when you have these landmarks in Central Park. But then it looks to, okay, well, when you have a gathering at Central Park, like I believe there was one last weekend, or the 9/11 memorial, like how do you control the population or the number of people that are coming to these locations for that specific purpose of catching rare Pokémon or catching items that are placed in the game, and then even then should there be security there that monitors that, and even then, how do you monitor that. And it’s very difficult, because this is so new that nobody has successfully implemented before until now.

Elie Mystal: We have talked a little bit about the very young and the attractive nuisance and the allures for them, let’s move to the very old, how do I keep these people off my lawn?

Andrew Rossow: You know what, that’s a good question and a lot of old school people would unfortunately say, get off my property and you hear the click-click of the weapon, and that’s another, especially with the young children, that’s another big concern. But from keeping people off your property, again, do people have a duty, do residence owners have a duty to have this game on their phone, to be aware of, okay, is my house one of these places during the week or on the weekend, if so, do I need to put a sign out that says, go away, stay off, this is not a PokéStop.

And even then, what happens if their property becomes one, whether intentionally or through a formula, through the programming, who do you report to, do you report it to the app, do you make a phone call, do you bring a lawsuit, and it’s difficult.

Elie Mystal: Right, that’s what I was going to ask, like is there any way that rolled out with the game at all where I can kind of not even complain or just point out to these people that my house or my property or my business has become a PokéStop and I want to be on a do not disturb this, I want to be off their list, is there any recourse through the company for that?

Andrew Rossow: Sure. It’s interesting that you ask that, I was talking to a friend of mine yesterday out at my apartment complex and a boyfriend of hers I think works out at Wright-Patt Air Force Base out here in Dayton, and I think recently the Wright-Patt Air Force Base was marked as a PokéStop, and as you know, it’s a Federal piece of property that you just can’t do that.

And I said, well, what happened, I didn’t hear anything about it, and they are like, well, you probably won’t, but I know for a fact that they placed a call to the higher-ups, and I think it was the Air Force that they called, and the Air Force reached out to, I believe, the developers; I might be wrong, but somebody up there and said, get this off our property now. And I was told that it was immediately removed, they are no longer a PokéStop, and I tried to inquire as to how they did that, but obviously with classified information and stuff, there has been no real answer.

So is there a way to do it, I would have to say yes. I know that’s one of the extreme cases in terms of Federal property and classified information, but there has to be some recourse.

Elie Mystal: I love that, man. The red phone is now get Charizard off of my military base.

Andrew Rossow: Yeah, stay off, nothing burning. And it’s interesting, and it just shocked me and I was trying to find articles about that yesterday, and I couldn’t find anything, but her friend or boyfriend works over there and that was the topic of discussion for about a day and then next day they are back doing their business and not having to worry about it.

But I think there is some sort of recourse and I think as property owners, whether you are a private citizen or a public servant, a government official, I think everyone has that right to say, I don’t want this on my property because when you start mixing in the public safety, health and concern, that takes priority for public policy reasons.

(00:19:57)

Elie Mystal: We are just at the beginning of this, right? I mean, we are just at the beginning of the augmented reality suite of legal issues, because when I look at the numbers and they tell me that Pokémon Go has as many or more users as Twitter, what I see is a bunch of other companies being like, all right, what’s going to be our augmented reality game or app? So the lack of legal kind of undergirdings here I guess worries me, because this isn’t the end, this is the start.

Andrew Rossow: Yeah, and I have to agree, and I think I mentioned this in my paper as, okay, you have other companies now that are looking at what Niantic and Nintendo and the Pokémon company have done and because I think it caught a lot of people off guard as to what the potential of this game actually is and what the affect is on people, both good and bad, I think it’s time to play catch up in the mindset of these other companies.

And for other popular shows, like you have ‘The Walking Dead’, you have ‘Game of Thrones’, you have these shows that are live action movies and TV shows that you can create versions of this; whether it’s Walking Dead Go or Game of Thrones Go and you are Jon Snow and you have to kill as many White Walkers as you can, but not all the White Walkers are running around Main Street or Central Park, so it’s situations like that.

And then depending on the type of game it is. Pokémon was an animated, fun, active game for young kids to go around and catch, whereas you have shows like ‘Walking Dead’ and ‘Game of Thrones’ that are a little more violent and much more active, with weapons and stuff. So I mean, the possibilities for any type of media or popular programming, I mean it’s endless, and it will definitely be interesting to see how it plays out.

Elie Mystal: Go shoot the zombies at the Holocaust Museum, that’s going to be a fun case, right?

Andrew Rossow: Oh, and you know what, that’s one that nobody wants to see, and again, how are the courts going to — I mean, what do you do as a judge sitting on the bench, how do you address it, how do you argue it, how do you introduce — which I don’t even think I got into in the papers, how do you introduced evidence into court of this activity of places you have been in the app.

And I know with my firm, we are starting up our cyberspace division where we help clients and individuals address some of these issues; whether it’s creating a cyber policy, creating a data policy and addressing, well, what happens if I die and who has control over my Facebook. So I mean, this is just another issue to add to that list, and it’s admitting cyber evidence into a courtroom.

Elie Mystal: Joe, if you die who gets all your Pokémon?

Joe Patrice: I am intestate, so I don’t know, whatever the laws of the State of New York would suggest, I don’t know.

Andrew Rossow: I think it goes to his attorney. I think that attorney is one lucky guy if he was a good trainer.

Joe Patrice: As long as I can tax a little bit of it as a liberal, I am fine.

Elie Mystal: Well, great. This whole thing is fascinating, and like obviously there’s the property rights issue, we have trespass issue, we have the get off the lawn with the people shooting, we have already had some shootings theoretically linked to Pokémon or least the excuse was Pokémon, whether or not they were just going to shoot people anyway, who knows.

But all of these things coming up, it’s just the rapidity of it for me, and you touched on this when you were talking about the whole cyber thing going, but this — it’s just so fast. It was like two weeks ago Wednesday — two weeks ago yesterday or something like that that all of this stuff, because we are recording on a Thursday, that all of this came into our lives and a few days later when the servers finally stopped crashing, so it’s even less than two weeks that we have managed to discover all of these different varied legal issues that go across boundaries and age groups.

And there was a great article that I believe was on Jezebel or Gawker, one of those two sites about race and how the weird behavior that it is to go around to play Pokémon means that there is a high likelihood of ethnic minorities being targeted as they walk through White neighborhoods and look suspicious, that they could face all sorts of repercussions from that too. So it’s just unbelievable how one little app has caused this much legal fire in this short a time.

Andrew Rossow: Pretty much so.

Elie Mystal: I mean, it’s like the Pikachu, yeah.

Andrew Rossow: Like I said, I am not against this app at all, and this is purely from a legal standpoint and the social aspects of it, there is a lot of good to this. It’s bringing people together in a way that I don’t think you or I really ever thought happening, to getting people in the house, it’s bringing a large number of people who don’t know each other into a new area and they start talking to people that maybe they would never have talked to on their own about something as strange as it is of imaginary creatures, but it brings people together and you get to meet more and more people.

(00:25:11)

However, again, on the legal side it’s interesting because there is always a consequence for every action and it’s hard to foresee every little thing that’s going to happen. But I think this is a start to a new area of cyber law, and it will be interesting to see how it plays out.

Elie Mystal: Yeah, I agree. I mean, I think the law ultimately will have to find a way to embrace this. I don’t think this is going to be the kind of fad that the law can easily crush with regulation, just because it’s such a seamless interaction with most people’s daily lives.

On the positive side, like I have, certainly with my kid I have learned more about my town, because the Pokémon tend to be clustered around landmarks and things in my suburban town that I didn’t even know existed, and when you have that level of seamlessness, I don’t think that regulation can stop it, so regulation needs to figure out how to embrace it.

Andrew Rossow: Right. I was in court this morning and I was walking out, and I happened to see a younger attorney walking out with his briefcase and he had his phone out, and he had it angled out towards me as I was walking out, and I saw the Pokémon Go screen on his phone, and he was holding it down, and he walked past me, and I turned around to see what he was doing and he — as he walked by me he pulls his phone back up and starts holding it out like he was looking around. So I mean, people are playing it, attorneys are playing it. I mean, it’s interesting.

Just looking at all the wacky headlines in the news, and I think there was a meme I saw over the weekend that is saying — it was from the government saying, get off of our property, what are you doing here in Area 51, and the player is like I am trying to catch a Mewtwo, and I will be on my way out, like where is my Mewtwo, and it’s —

Joe Patrice: And that causes all sorts of issues, that causes all sorts of different issues, because the government, they don’t — especially there, those guards don’t know that you are playing the game, because they actually have a Mewtwo in Area 51.

Andrew Rossow: Of course, of course, lots of them. And you start to get in that issue, how do you know when someone is just playing Pokémon Go or they are actually on your property there to unfortunately commit a crime or cause harm, like how do you distinguish that, and then should that person who is trying to protect their property or maybe themselves, how are they supposed to know?

Joe Patrice: Yeah. And I will tell you, since we raised the Mewtwo thing, I was reading an article today that some of the very rare Pokémon just have never been kind of put in the game yet, and there is some hypothesis that this might become — this is a planned event, that like there will be one of these play spawned somewhere to like create a PR moment, and just seeing that video of the folks screaming through Central Park trying to catch that Pokémon, I am like whenever there is a like a actual Mewtwo like sighting, the stampede of people is going to be something that they have not really — if they have not thought through what’s happened so far, they really are going to be shocked by what happens when these players have the opportunity at something like that.

Andrew Rossow: Right. And then when you have got these big areas, I know there was an article that came out a couple of days ago that hackers are already trying to exploit the vulnerabilities of this game, and I think on Twitter there is a hacking group, I think they are called PoodleCorp, if I am not mistaken, and they put something up saying August 1, beware #PokémonGO, #PoodleCorp and people are thinking that this is another DDoS attack.

I think that was a group of hackers that claimed responsibility for taking down the servers last week. And for something like that, they are already planning something that nobody knows what’s going to happen on August 1, God forbid, it’s with a bunch of people and it’s scary. Because then you get into data privacy issues and then private security, and it’s unfortunate, especially with the state of how things are going in the country, with the police shootings and just all the violence, while Pokémon Go is giving inspiration and hope to people to go out and have fun and connect and be with one another, there is always going to be a security issue.

Elie Mystal: Yeah, and on that happy note —

Joe Patrice: Yeah, exactly.

Elie Mystal: Pokémon will kill us all.

Joe Patrice: We really screwed this up, about three minutes ago we had the ending that was like everybody is going out and meeting people they wouldn’t meet otherwise and it was beautiful and we just had to push it.

Elie Mystal: Well, this is Thinking Like a Lawyer.

Andrew Rossow: I can state it again.

(00:29:54)

Joe Patrice: All right. Well, we will just hope everyone remembers. Thank you so much for coming out and talking about Pokémon with us on this somewhat ridiculous podcast that we like to have about legal issues, because this is kind of exactly what this podcast was all about; like finding weird and wild things that the law intersects with.

Elie Mystal: Thanks for doing this so I don’t have to, man.

Andrew Rossow: All right. Well, I thank you so much for having me.

Joe Patrice: All right. Well, so if you aren’t listening to this as a subscriber yet, you should subscribe, because there’s no reason not to and then you would get it every week, or I guess we are not every week, every couple of weeks and you would hear us and we don’t have to warn you over the Internet that we have something coming out; you will just get it in your phone. It will be like — you don’t even have to go out and catch it, it’s not even like a Pokémon, you will have it everyday.

So you do that, give us reviews, read Above the Law, read ATL Redline. Follow us on Twitter, all of the various ways that you can get at the double Harvard mind nuggets that Elie is going to put out.

Elie Mystal: I am going to go play Overwatch.

Joe Patrice: Yeah, okay.

Elie Mystal: Sit in my room, my dark room, eating my potato chips, drinking my beer, playing Overwatch.

Joe Patrice: You are from the past man. Well, on that note we will let you go. We will talk to you in the future.

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