Discussing the legality of mobile games such as Pokémon Go

 

As Pokémon Go has been released last month, 90’s kids and videogame lovers alike have flocked to download the massively popular game. Early estimates indicate that the game makes more than $2 million a day on the iOS store alone, easily toppling the now #2 game Clash Royale. In fact, the game has netted an increase in Nintendo’s stock of +$8 billion. It deviates from the traditional turn based style that dominates the original games, and instead uses a form of augmented reality with the Pokémon and Google Maps. The user controls a character in the game that moves in real-time as the user moves. The phone’s GPS tracks the location of the user and that is shown on the phone’s screen. The Pokémon that the user finds are rendered in the real world through the camera and seemingly act to fight a player from its capture. As fun as the game has been, there are concerns in the public regarding a user’s safety and the possibility of the game’s illegality.

An important part of the game is movement. Players have to move to track Pokémon they want to catch or hatch Pokémon from eggs. There are also specifically marked areas on the map from a previous game (Ingress, made by Niantic) that serve as Pokestops. Once pressed, these spots give special items and goodies for the user. Additionally, there are Pokémon Gyms, where users can battle other Pokémon and claim the gym for their respective faction. The problem that arises is that these in-game locations are potentially on private property. These Pokestops are at churches, parks, apartments, courthouses and historical landmarks in every city. There is even a gym at the White House that is being challenged daily by the three fighting factions.

Because of the location based gameplay, there are concerns regarding trespassing and shady activity. A trespass occurs when there is an intrusion that affects the owner’s rights to exclusive possession of the property. Players may unknowingly wander into private property in hopes of catching a Pokémon or reaching a Pokestop or Gym. It would be difficult for a claimant to bring a lawsuit against Nintendo/Niantic for causing the trespass, as the game itself has several warnings that indicate the user should be “aware of their surroundings.”

There is also a safety concern for the player base. There have been reports that people have been using an item that increases the popup rate of pokemon to lure people to that location. Once they are there, they may be robbed and seriously injured. Further, because it is arguably a children’s game, children are more attracted to the addictive nature of the game. This addictive nature, coupled with the Pokestops and Gyms can give rise to an attractive nuisance issue. Attractive nuisance is defined as:

 

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

  • (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
  • (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
  • (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
  • (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  • (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Restatement (Second) of Torts 339 (1965)

 

What this means is that children are so attracted to this game that they cannot help themselves from running into someone’s property, or traffic or a restricted area. That trespass may cause serious implications for the child and the family. And even if the land owner has taken every reasonable precaution, they may still be held in liable as they “should have known” that their property was an attractive nuisance to children. The argument against is that the landowner may not know that in the virtual world their location is a part of a popular game, and thus should not be liable for that part. Additionally, parents should also be monitoring their own children and bear the responsibility of their actions. These Pokestops and Gyms all have a permissible radius, that is, you do not have to be on the center of the location, it will register the user nearby (within a radius of ~40 m) and that should be enough as a player is on the edge of another’s property for getting the items or tackling the gym.

 

The problem is that augmented reality is a new development in technology. There are not many laws that relate to the area yet. What Nintendo and Niantic have done however, is push these questions to the forefront and potentially cause legislation in the future.

 

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