Pokémon Go, Augmented Reality, and the Future of Mobile Gaming

Pokémon Go, Augmented Reality, and the Future of Mobile Gaming

Jakob Metz*

Pokémon Go, the latest mobile gaming craze, has taken the world by storm since its release in July 2016.  The game, created by Nintendo, The Pokémon Company, and Niantic Labs, has been downloaded millions of times by players across the world.  Tiffany Li, Pokémon Go and the Law: Privacy, Intellectual Property, and Other Legal Concerns, Freedom to Tinker (July 19, 2016), https://freedom-to-tinker.com/blog/tiffanyli/pokemon-go-and-the-law-privacy-intellectual-property-and-other-legal-concerns/.  Pokémon Go is free to download for iOS and Android devices.  Stephanie Lee, What Is Pokémon Go and Why Is Everyone Talking About It?, Lifehacker (July 11, 2016, 8:00 AM), http://lifehacker.com/what-is-pokemon-go-and-why-is-everyone-talking-about-it-1783420761.  The game does include in-game purchase options that can make playing the game easier and more enjoyable.  Id.  The game operates by accessing the GPS capabilities of any smartphone.  By locating players and placing them on a real-world map, the game allows users to navigate and interact with the environment around them.  Id.

The game falls under the category of “augmented reality.”  Om Malik, Pokémon Go Will Make You Crave Augmented Reality, New Yorker (July 12, 2016), http://www.newyorker.com/tech/elements/pokemon-go-will-make-you-crave-augmented-reality.  Augmented reality, as described by The New Yorker, is a “view of the real-world environment whose elements are overlaid (or augmented) with computer-generated image and sound.”  Id.  For Pokémon Go, this allows players to wander around and catch creatures called pokémon, which appear in the world and can be seen using the phone’s camera.  Players can also visit real world locations that have been designated as “Pokéstops” which provide the player with in-game items that make playing the game easier.  Andrew L. Rossow, Gotta Catch…a Lawsuit?  A Legal Insight into the Battlefield Pokémon Go Has Downloaded onto Smartphones and Properties Around the World, Ohio St. Bar Ass’n (July 20, 2016), https://www.ohiobar.org/NewsAndPublications/News/OSBANews/Pages/Gotta-catch-a-lawsuit-A-legal-insight-into-the-battlefield-Pokemon-Go-has-downloaded-onto-smartphones-and-properties.aspx.  With millions of people wandering around to play, the game has given rise to a number of legal issues.

Pokémon Go has led to a series of crimes including shootings, stabbings, and robberies.  In California, a girl was stabbed while playing the game at about two o’clock in the morning on a Friday.  A group of people approached the girl and her friend, demanded her purse, and then proceeded to attack the two.  Police: Teen Stabbed, Robbed While Playing Pokemon Go, USA Today (July 15, 2016, 6:18 PM), http://www.usatoday.com/story/tech/nation-now/2016/07/15/police-teen-stabbed-playing-pokemon-go/87153250/.  Another case occurred in Guatemala, where two teenage cousins were shot after breaking into a home in order to catch a pokémon.  One of the cousins, an eighteen-year-old boy, was reported as the first fatality related to the game.  His cousin, only seventeen, was also badly injured.  Gerard Couzens & John Shammas, Pokémon GO ‘Sees Its First Death After 18-Year-Old Breaks into House to Catch Virtual Animal but Is Shot’, Mirror (July 20, 2016, 8:11 AM), http://www.mirror.co.uk/news/world-news/pokmon-go-sees-first-death-8453153.  Yet another incident occurred in Baltimore, Maryland, when a man crashed into a police vehicle while playing the game.  When questioned after the crash, the man told police, “That’s what I get for playing this dumb— game.”  Mary Bowerman, Driver Slams into Baltimore Cop Car While Playing Pokemon Go, USA Today (July 20, 2016, 11:35 AM), http://www.usatoday.com/story/news/nation-now/2016/07/20/driver-slams-into-baltimore-cop-car-while-playing-pokemon-go-accident/87333892/.  Fortunately, no one was injured in the collision.  Id.

In addition to numerous criminal incidents, Pokémon Go has created the potential for tort liability as well, particularly in the realm of car accidents.  Li, supra.  In upstate New York, a 28-year-old man drove his car into a tree while playing the game, causing extensive damage to his car.  Alfred Ng, New York Man Crashes into Tree Playing Pokémon Go While Driving; Pennsylvania Teen Run Over Crossing Highway, N.Y. Daily News (July 13, 2016, 6:39 PM), http://www.nydailynews.com/news/national/pokemon-players-car-accidents-u-s-article-1.2710266.  Fortunately, the man did not sustain any injuries from the accident.  Id.  The victims of another crash in Japan were not so lucky.  Miho Inada, ‘Pokémon Go’-Related Car Crash Kills Woman in Japan, Wall Street J. (Aug. 25, 2016, 5:27 AM) http://www.wsj.com/articles/woman-killed-in-pokemon-go-related-car-crash-in-japan-1472107854.  Police stated that a car ran into two pedestrians as they walked across the street, killing one and severely injuring the other.  Id.  Another accident occurred in Australia, when a 19-year-old crashed into a school building while playing the game.  Pokémon Go Player Crashes Car into School While Playing Game, Guardian (July 28, 2016, 6:28 PM), https://www.theguardian.com/australia-news/2016/jul/29/pokemon-go-player-crashes-car-into-school-while-playing-game.  Based on these incidents, it is clear that distracted driving is a problem with this game.  In order to counteract this and protect their companies, the creators have included warnings in the loading screen of the game, displaying messages informing players to be aware of their surroundings and not to play while driving.  Breanne L. Heldman, Pokémon Go Adds New Safety Warnings, Ent. Wkly. (July 31, 2016, 9:48 PM), http://www.ew.com/article/2016/07/31/pokemon-go-new-safety-warnings.  It is yet to be determined whether the warning messages will alleviate liability from the creators of the game.

Another prevalent issue associated with Pokémon Go is trespassing.  The game allows players to interact with their real-world environment.  David Thier, What Is ‘Pokémon GO,’ and Why Is Everybody Talking About It?, Forbes (July 11, 2016, 11:44 AM), http://www.forbes.com/sites/davidthier/2016/07/11/facebook-twitter-social-what-is-pokemon-go-and-why-is-everybody-talking-about-it/#623e150f21c7.  Additionally, some of the in-game locations may lead players onto private property.  Mohamed Omar, Vancouver Homeowner Asks Pokemon Go Players to ‘GET A LIFE AND STAY OUT OF MY YARD’, Huffington Post Can. (July 18, 2016, 2:15 PM), http://www.huffingtonpost.ca/2016/07/18/vancouver-pokemon-go-poster_n_11053494.html.  Occasionally, pokémon will appear on the properties of private residences, causing players to loiter and trespass, thus frustrating the homeowners.  Id.  Jeffrey Marder of New Jersey is currently leading the charge against Pokémon Go and its creators.  Brian Crecente, Pokémon Go Trespassing Spurs Lawsuit Against Nintendo, Pokémon Company, and Niantic, Polygon (Aug. 2, 2016, 8:58 AM), http://www.polygon.com/2016/8/2/12350580/pokemon-go-lawsuit.  According to an article from Polygon, the suit intends to involve:

[A]ll persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application. Id.

Another homeowner in Vancouver became so fed up that he posted a sign telling players to “GET A LIFE AND STAY OUT OF MY YARD.”  Omar, supra.

Pokémon Go has gone where no game has gone before.  The game has taken over the smartphones of millions of people and shows no signs of stopping.  As people continue to download Pokémon Go, the game will most likely create many more legal disputes.  The creators of the game have exposed themselves, the players, and the general public to numerous liability issues, and more may arise as time progresses.  Additionally, augmented reality applications and games may begin to appear much more frequently.  The law will have to play catch-up in order to accommodate the new issues posed by such technological development.  At what point does the creation of in-game locations infringe on the rights of real property owners?  Will homeowners be liable for issues caused by the pokémon on their properties?  Will the game’s warning signs protect its creators from various tort actions?  All of this will be determined as more people play the game and more issues emerge.  Stay tuned to see how the law develops around these matters.

*Jakob Metz is a second-year law student at the University of Baltimore School of Law where he is a staff editor for Law Review.  In addition, Jakob serves as the President of the LaBrum chapter of Phi Alpha Delta as well as the Vice President of the Real Estate Law Association.

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