Pokémon Go: Is a New Meaning to “Trespassing” in the Works?

Pokémon Go Trespassing Nuisance LawsuitLocation-based augmented reality game Pokémon Go may have passed its prime, but that doesn’t mean bystanders have forgotten about the players stepping on their property. Legal action has been taken, and now a judge has to make a decision that may bring new substance to the meaning of trespassing, according to The Hollywood Reporter.

The evolution of Pokémon games

For those who are unaware, Pokémon Go is a play on the Game Boy Pokémon games that surfaced in the 90’s, according to Forbes contributor Dave Thier. The object of the original game is to capture Pokémon – a name derived from the combination of “pocket” and “monsters” – and train them to battle. The player sets out on a journey to capture and train as many Pokémon as possible, in hopes of becoming the best trainer in the world.

Fast forward to 2016: We’re in the digital age, where technological advances are spearheading so many different industries. Entertainment-wise, virtual reality has taken off, giving consumers an exciting, interactive way to play video games. Augmented reality has also surfaced, which is technology that takes a computer-generated image and superimposes it over the view of the real world via smartphone. Pokémon Go is the perfect example of such technology that has skyrocketed in popularity. Users play the game as they did in the 90s, but they’re not controlling the trainer within the game – they are the trainer outside of it. Using a smartphone camera, players find and catch virtual Pokémon characters in real-life locations.

Harmless play or a potential lawsuit?

While the game may have a great reputation with its players, that’s not quite the case for innocent bystanders. Last summer, many homeowners began nuisance lawsuits against the app’s developing company Niantic, claiming that strangers, walking around in what seemed like an aimless manner, were disturbing them on their property.

However, Niantic has stressed that unless these strangers are trespassing on the property – not merely aiming their phone at it to collect a virtual Pokémon – then there’s nothing to dispute. He stressed that all users must agree to Terms and Trainer Guidelines before playing the game, which states that they cannot break a law to capture a Pokémon.

But homeowners are firing back, hoping for an adjustment to the meaning of trespassing – one that denies “virtual trespassing” as well. A statement regarding the proposition can be found in the opposition brief:

“Landowners should have a right to refuse the placement of virtual objects on their property – at least where those virtual objects create any kind of incentive for any persons to be in their physical proximity.” 

Niantic responds

But Niantic isn’t standing for this. His reply echoed his earlier argument – that a person may not be punished for “virtual trespass” – if so, this will destroy many apps that consumers love and use on a daily basis. In a reply to the opposition, Niantic’s lawyers stated the following:

“This does not support Plaintiffs’ theory that property owners should be able to prevent app developers from displaying on-screen virtual objects on the devices of third parties, at virtual locations corresponding to being near the property owners’ properties. If accepted, it would threaten numerous online services. For instance, creators of apps that display on-screen markers (e.g., a walking tour app that flags landmarks or an app that permits users to ‘check-in’ virtually to a location to connect with friends) could be liable for trespass. There is no legal support for, and no need for, the expansion of the law Plaintiffs advocate, so the Court should reject their theory.”

Most social media apps, for example, give users the ability to “check-in” at a location. Snapchat uses on-screen markers to tag geographical locations in pictures as well. If the courts redefine the meaning of trespassing, with a virtual twist, apps may suffer after eliminating interactive features that attract users.

For more insight on this case or if you have any questions regarding the matter, please contact me, Anthony Caruso, at 201-806-3364.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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