Focus: Virtual trespassing result of Pokemon Go?

The wildly popular game Pokemon Go and the hordes of players who walk to various destinations to unlock the game’s characters on their phones are raising a legal question around virtual trespassing, a University of British Columbia professor says.

Nintendo, the company behind the augmented-reality game, saw its stock prices soar as millions took to the street to collect and train Pokemon characters like Pikachu from various city locations, including parks and other landmarks.

While some businesses capitalized on the hype by posting signs about the presence of the virtual critters on their premises, not everyone took kindly to a sudden flux of people who had come to their doorsteps chasing Pokemon. Days after the all-consuming game launched, the Holocaust Museum in D.C. told the Washington Post about its displeasure with folks coming into the museum to play Pokemon Go. In Toronto, Sick Kids Hospital also tactfully asked gamers to stay away.

Jon Festinger, who teaches video game law at UBC’s Centre for Digital Media, says the game raises a question about what control, if any, property owners have over their virtual space.

“A virtual item is being placed without the knowledge and the permission of the owner of the physical space,” says Festinger. “This virtual item exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can’t fish it from a distance.”

“Do you have the virtual right to your premises?” Festinger asks.

When videogame companies recreate a real sports arena or baseball park for use in their games, they ask for permission to do that, says Festinger, who was formerly general counsel for the Vancouver Canucks and GM Place.

“That’s not the same as planting something virtual in another dimension, if you will, in a real space,” he says.

Noel Courage, partner at Bereskin & Parr LLP, says there are also privacy concerns around the data the app collects and how that data may be cause for privacy concerns. Companies like Nintendo can collect a massive folio of information on people’s behaviour based on their location and places they frequent, he says.

Courage adds there’s evidence the game is already changing people’s behaviour as they, for example, prefer restaurants where a rare character of the game can be unlocked nearby. The data is extensive and “a goldmine from a commercial point of view,” Courage says.

“They don’t really say much about what use they’re going to make of information you provide, which I thought was interesting,” he adds.

But privacy and virtual trespassing aren’t the only legal issues to come out of the Pokemon Go mania. On a rather darker side of the gaming mania, news reports out of Missouri said the Pokemon Go app was used to lure players into a place for armed robbery.

Pokemon Go’s terms of service addresses safety issues, saying players must consent to assuming their own risk.

“During game play, please be aware of your surroundings and play safely,” the term of service reads.
“You agree that your use of the app and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the services.”

By playing the game, users also agree not to violate any applicable laws and regulations, including trespass laws.

The app says children under the age of 12 are required to have their parents’ consent to log on, but it’s hard to say how a court may interpret that disclaimer, Festinger says.

“What is a court going to make of that? Do you really think every kid who . . . clicks ‘I agree’ to the contract goes to their parents and says, ‘Hey, Mom and Dad, is it OK if I click on this?” Festinger asks.
“The question is the extent to which the courts might want to look behind those contracts, and that’s a real question that has not been litigated in a videogame context yet.”

The makers behind Pokemon Go are likely expecting lawsuits over such safety questions, Courage says, adding it’s likely something they’re prepared to fend off.

“It’s another cost of doing business,” he says.

To be sure, Festinger says Pokemon Go isn’t the first videogame that has blended the physical world with a virtual one. Although it was a “spectacular failure,” Majestic, launched in 2001, interacted with players’ real lives by sending them clues via e-mail, fax, and instant messaging, he says. Two years ago, another augmented-reality game, Ingress, also required players to physically travel to landmarks to collect “portals.”

“Pokemon didn’t show up out of nowhere,” Festinger says. “It’s Ingress in many ways.”

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