By Matthew Cooke
Since launching in the US in early July, Pokemon Go
has taken the gaming world—and the real world—by storm, unleashing hordes of
players wandering about the landscape, viewing their surroundings through cell
phones while attempting to track down a Flareon or a Drowzee.
The sheer number of participants, however, and the
determination to locate their imaginary quarry is increasingly leading to some
not-so-imaginary problems, from jaywalking to trespassing and beyond. Already,
a teen too lost in the game to notice her surroundings walked onto a highway and was struck by a
vehicle, while a couple other players accidentally fell off a cliff; others are having their property overrun by players on the hunt.
Is that a Pokemon? Nope, it’s a corpse
As the number of players continues to multiply, so too
will the possible legal issues which accompany an innovative and immersive game
that blurs into material space. “Pokemon Go may be a different way of playing
an online game, mixing fantasy and reality, but people need to keep the rules
of the real world in mind,” said Josh King, Avvo’s general counsel. “The rules
of physics and trespassing still fully apply.”
The exploratory nature of the game, in which players
are encouraged to investigate different locations and uncover Pokemon “hiding”
in unexpected places—a key component of its appeal—also potentially leads to
some unpleasant discoveries. Several reports have emerged of players
unwittingly finding dead bodies as they roam
through isolated areas, and armed robbers have even used the game to ensnare victims.
“If you run into the middle of a busy street to catch
a rare Pokemon—there may be physical consequences,” says King. “Same goes for
entering into unfamiliar (and potentially unsafe) areas, interacting with
unknown people in public, and trespassing onto private property to get items in
the game. In all such things, augmented reality has the potential to get very
real.”
Virtual game, real legal questions
In addition to more established would-be breaches of
legality, there are a few rather unusual, possibly even brand new questions of
law that the nature of the game brings into play (so to speak), like:
Pokemon nuisances: If the makers of Pokemon Go have installed a Pokemon
item on your property and an overzealous player pursues it there, is Pokemon Go
guilty of trespassing, or at least creating a nuisance? “Most likely no, as
trespass requires a real-world invasion of property rights and owners can
resort to self-help if they think it’s a nuisance by opting out,” says King.
“But expect to see this tested in court, as the game can create trespass
‘opportunities’ and can also bring potentially large crowds of people into
close proximity with private property – potentially sparking confrontations or
claims of nuisance – than would otherwise happen.”
Negligence, by way of being too good: Can
Nintendo get in trouble for making a game that’s so immersive, people walk into
traffic while playing it? Probably not, according to King, but the possibility
is still there. “Traditionally, people are responsible for managing their own
behavior,” says King, “and the factors that distract them are not legally responsible.
But again, don’t be surprised to see legal challenges on this front.”
Virtual trespassing, or: Get off my
lawn, Pokemon! “We’ve already seen some venues – like the Holocaust
Museum and some restaurants – call for patrons to not play the game on the
premises,” says King. So does that mean that venues can sue Nintendo for
populating their private property with virtual characters? Again, probably not,
but nobody really seems to know for sure. “There’s a first amendment right to
associate intangible concepts (like words and ideas, but also Pokestops and
Pokemon gyms) with tangible people, places, and things; it’s hard to see how a
property owner could overcome this,” says King. As previously mentioned,
businesses do have the ability to “opt out,” though one might wonder if some
places (cemeteries, etc) might not be so patient about being included in the
first place without their consent.
Pitfalls for players as well
So Nintendo’s got some interesting legal
considerations to think about, but what about the players?
Clearly, some of the same would-be problems—like
trespassing, for instance—are of concern for people playing the game. But there
are other possible issues as well. The Terms and Conditions are a good place to
start for those wanting to enjoy themselves while being aware and educated.
“As of now, an arbitration notice states that Pokemon
Go users automatically agree to waive their rights to any future trial by jury
or class action lawsuit unless they opt out within 30 days of starting to
play,” says King. Sounds like Nintendo may have seen a few snags coming.
Also, a hot tactic in the gaming community is to buy
and sell player accounts; essentially, the seller takes the time and effort to
build a player profile, boosting the level of the account and gaining access to
tools and perks (and Pokemon), then selling to someone who’d rather not put in
the work. It’s especially tempting with Pokemon Go, as the popularity of the
game has become high enough already that, in some social groups, failing to
reach a respectable level in the virtual game creates actual status anxiety.
But this is expressly forbidden—and legally actionable—by way of the Terms and
Conditions.
So enjoy yourselves out there as you go collecting
Pokemon, and if you’re a property owner who doesn’t approve of such
shenanigans, don’t feel bad about taking action. “They should exercise their
right to legally keep trespassers off their property,” says King, “by involving
local law enforcement or retaining a lawyer.”
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