Lawyer Points Out Pokemon Go Might Be Illegal


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Kevin Daley Supreme Court correspondent
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The law is stepping on Pokemon Go’s funk — lawyers say the wildly popular augmented reality mobile-app raises a fascinating bevy of legal questions.

For the neophyte; Pokemon Go is a mobile augmented reality (AR) application in which a game-purposed version of Google Maps replaces real world destinations with game-related buildings. Users move about in the physical world while their movements are replicated in the app in real time. Players may capture Pokemon they encounter, build and train teams of captured Pokemen, and battle other players at certain locations called gyms (the developer has placed gyms in high profile locations like Central Park or the Westboro Baptist Church, a Kansas based hate group.)

The prospects of hundreds of thousands of players darting down the highways and byways of America in pursuit of virtual game gives rise to new legal quandaries, writes Keith Lee, an accomplished Alabama litigator, on his blog Associate’s Mind. Does placing an AR on an individual’s property without their permission constitute trespass? Or perhaps creation of an attractice nuisance? If so, doesn’t this imply that a real world property claim extends into cyberspace?

The obvious problem the app raises, according to Lee, is trespass, or “the act of knowingly entering another person’s property without permission.” Liability for trespass in the civil context is established fairly easily. It may be imposed if an individual intentionally, recklessly, negligently, or as the result of a hazardous activity enters another property. An individual doesn’t even have to know they are trespassing to be held civilly-liable for trespass.

Imagine you are a property owner and a game developer has placed objects and sounds in an AR space on your property without your permission (as has no doubt happened at hundreds of Pokemon Go sites around the country.) These objects attract dozens and quite possibly hundreds of broken and unwashed teenagers to your property. Has trespass occurred? Or are players engaged in a cyber plane on which you have no exclusive property claim?

The attractive nuisance question is equally complicated. Attractive nuisance is a tort which holds that landowners must eliminate dangerous conditions on their land which attract children, as children may not appreciate the danger which attends, say, a high-voltage power line or a deep trench. An individual who fails to rectify an attractive nuisance on their property is civilly-liable to injury a child sustains on it, even if the child was trespassing.

Supposing an individual is injured on private property in the course of pursuing a rare Pokemon (for example, police in St. Louis say a coterie of loutish teenagers have used the app to lure players into nearly a dozen robberies.) Is the property owner liable for tolerating an attractive nuisance? Does Pokemon Go even fit the conventional definition of attractive nuisance?

“Augmented Reality is new,” Lee writes. “So new that the law hasn’t even begun to broach the topic. It lends itself to lots of big, novel questions from a legal perspective.”

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