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Property Owners Continue to Say 'No' to Pokémon GO

The Legal Intelligencer

Pokémon GO—the latest iteration of the immensely popular Pokémon media franchise, best known for producing a series of video games in which players act as "trainers" with the goal of capturing and collecting fantasy creatures called Pokémon—has continued to sweep the nation. Downloaded over 650 million times, this revolutionary mobile app relies on various smartphone technologies—including GPS, camera and gyroscope features—to create an "augmented reality" gaming ­experience in which players locate and capture virtual Pokémon by exploring their physical surroundings.

But not everyone is thrilled about Pokémon GO's meteoric rise. Within days of the game's release, it was revealed that a number of the GPS coordinates for real-life locations gamers can visit for in-game perks were on or adjacent to private ­property ­selected without the owner's consent.

Finding themselves overrun by strangers hoping to catch Pokémon at all hours of the day and night, property owners have begun filing putative class actions alleging trespass, nuisance and unjust enrichment against the game's developer and marketer. Because these real property torts remain largely untested in the augmented reality context, property owners are now asking courts to order a stop to Pokémon GO.

Oh, The Places You'll Pokemon GO!

Created by Japanese video game designer Satoshi Tajiri in 1995, the Pokémon media franchise consists in large part of video games centered on fictional Pokémon ­creatures. Published by Nintendo, Pokémon video games have sold more than 200 million copies worldwide.

On July 6, 2016, Niantic Inc.—a software development company formed in 2002 as Niantic Labs, an internal startup at Google Inc. that was then spun off in October 2015—released Pokémon GO. As with ­earlier Pokémon games, the object is to collect as many Pokémon as possible; Pokémon's English language slogan is appropriately titled "Gotta Catch 'Em All." Once ­collected, the Pokémon battle each other for sport. But unlike prior games, Pokémon GO is unique in its reliance on mobile technologies to create a novel, "augmented reality" experience.

When a player comes in close proximity to GPS coordinates determined by a Niantic algorithm, the game uses the phone's camera mode and gyroscope to display the image of a Pokémon superimposed over the real-world image presented on the phone's screen—as though the Pokémon existed in the physical world. By swiping their screen, players attempt to "catch" the Pokémon to add them to their virtual collections.

Niantic also selected and programed the GPS coordinates of certain ­real-world ­locations, designating them as either "Pokéstops" or "Pokégyms." Visiting Pokéstops allows players to access ­potentially vital in-game items; Pokégyms offer players the opportunity to engage in virtual battles with other players, success in which advances their progress through the game.

Combined, these features encourage players to visit locations where Pokémon are likely to appear, or where Pokéstops or Pokégyms can be found. The problem arises, however, when those locations ­belong to private parties who do not want gamers trolling their property hunting for imaginary creatures.

Gotta Sue 'Em All?

In November 2016, four plaintiffs—consisting of a New Jersey resident, a Michigan couple and a Florida condominium association—filed a ­consolidated class action in the Northern District of California against Niantic and The Pokémon Co. for trespass and nuisance (In re Pokémon Go Nuisance Litigation, Case No. 3:16-cv-04300). Each plaintiff alleged harm from having random people lingering on their property due to its designation as a Pokéstop or Pokégym.

In response, Niantic moved to dismiss the case—accusing plaintiffs of "contorting real property torts" to hold Niantic liable for third-party conduct for which it was not responsible.

Contesting the nuisance and trespass claims, Niantic argued its decision to ­require players to agree they would not trespass—via its terms of service, and Pokémon GO trainer guidelines—negated a showing of intentional trespass (as required by Michigan and Florida law), as well as prevented Niantic from being the "legal or proximate cause" of the alleged nuisance under New Jersey law. Niantic also asserted that placing virtual items on a virtual map did not constitute trespass, as "an unauthorized entry of a tangible object onto real property" was required. From a public policy perspective, Niantic further asserted that the plaintiffs' theory of liability would "implicate numerous online services that help users find specific locations," such as apps that list real estate open houses, ­child-friendly public parks and shortcuts through city streets.

The plaintiffs responded by claiming the developer had ample opportunity to curtail the intrusions, but instead, "encouraged and rewarded" such behavior. "Niantic was the only party capable of abating the nuisance" when players declined to leave, "yet Niantic did not even substantively respond to the property owners' complaints, let alone take any steps to abate the nuisance it knew it had created." Further, by placing Pokéstops or Pokégyms on private property, knowing its actions would result in trespass and nuisance, the company created a "direct link in the causal chain" that resulted in plaintiffs' injuries. (Notably, the plaintiffs' separate claims for unjust enrichment against Niantic, The Pokémon Co. and Nintendo were voluntarily withdrawn).

Implications: Augmented Reality, Real Liability?

The shocking success of Pokémon GO means other companies will likely seek to capitalize on this growing augmented reality trend. But before the dawn of a new age of augmented reality can take hold, courts will have to decide where the bounds of liability fall with respect to how the digital world impacts the real one; In re Pokémon Go Nuisance Litigation will thus resonate both within this burgeoning realm of augmented reality games and beyond. If, for instance, a software developer or marketer can be liable for the actions of users in ­response to in-app incentives, this may cause a chilling effect on innovation, and could even dissuade some companies from entering the marketplace. Conversely, if a company's known disregard of the ­foreseeable actions of its users in response to in-game incentives causes harm to others, where else can those impacted seek relief?

There are also implications for what a company can do to protect itself from ­liability via its terms of service, user guides, etc. Indeed, Niantic's argument that gamers must first agree to, among other things, not trespass, harass others, engage in conduct that could result in injury or property damage, or violate any other law before playing the game may go a long way to convincing the court Niantic took reasonable steps to prevent the alleged harm.

Customer service and responsiveness may also play a role in defeating liability. For example, although Niantic created a system in late July 2016 whereby people could request a Pokéstop be removed via a form on its website, most requests have ­reportedly gone unanswered. This has likely frustrated property owners, who fear they have no other option than to sue.

Lastly, some Illinois property owners have instead turned to their legislature to address unwanted Pokémon GO gamers. Democratic state Rep. Kelly Cassidy ­recently introduced the Location-Based Video Game Protection Act, HB 6601, nicknamed "Pidgey's Law" after one of the game's bird Pokémon. If passed, the bill would allow a real property owner to bring a civil enforcement action and would fine Niantic $100 per day for not removing a Pokéstop if the request was not met within two business days.

Until courts provide guidance, property owners and game developers alike will ­continue to hunt for clarity as to who is labile for real damage caused by the search for imaginary creatures.

Property Owners Continue to Say 'No' to Pokémon GO,” by Jeffrey N. Rosenthal was published in The Legal Intelligencer on April 25, 2017. To view the article online, please click here.

Reprinted with permission from the April 25, 2017, edition of The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.