Virtual Trespass: Not in My Backyard

Picture1By Yonah Reback

Who could have predicted that last summer’s biggest fad would be the reemergence of a Japanese video game whose cultural relevance peaked fifteen years ago? If you had known that Pokémon Go would immediately sweep the nation’s interest upon its release in July 2016, call me—I want your stock tips for this summer. For the rest of us mortals, the game was a surprise hit, quickly drawing the attention of not just kids and gamers, but anyone tuned in to pop culture. 

As a free smartphone app, what made Pokémon Go stand out was its promise to “travel between the real world and the virtual world.” In essence, the game involves “capturing” various Pokémon creatures, whose location is determined by the user’s actual location in the real world. Using a map-like feature based off the user’s current location, the game places Pokémon creatures at nearby locations, requiring the user to physically travel to the location in order to capture the Pokémon and thereby successfully play the game.

To some, the game was praiseworthy for forcing its users to exert physical effort, whereas most video games keep their user stationary. Others, however, were frustrated by the game’s design, which often led its users to invade private property in search of these Pokémon. Those frustrations culminated in a class action lawsuit  filed in the U.S. District Court for the Northern District of California against Pokémon Go’s creator, Niantic, Inc., alleging the game-maker encouraged “virtual trespassing” by its users.

In the case of In Re Pokémon Go Nuisance Litigation, a group of homeowners from across the country along with a condominium association allege that Pokémon Go directly encouraged trespass and nuisance on private property. By designating their private properties as important “destinations” within the game, the homeowners claim that Niantic was able to “monetize these properties for its own benefit while offloading the costs associated with physical presence of [its players].” One plaintiff explained that at least five individuals knocked on his door requesting access to his backyard in order to “catch” Pokémon. Other plaintiffs shared similar stories of strangers invading their privacy and property at all hours of the day. Residents of a condominium complex in Florida found their complex “infiltrated” in the early morning by Pokémon Go players behaving “like zombies.” As the plaintiffs argued, neither the location of Pokémon creatures nor the time of day at which they attracted players was coincidental. In truth, the game designated private homes and property as “Pokémon gyms,” and made Pokémon creatures available at such locations during particularly odd hours. In a PR blunder mentioned by the plaintiffs to underscore how Niantic randomly selected private locations as “gyms” without the owners’ consent, they demonstrated how the U.S. Holocaust Museum in Washington, D.C., as well as a cemetery in Mobile, Alabama were chosen as gyms. The plaintiffs ultimately allege that property owners should have the right to exclude certain virtual objects from being “placed” on their property without their consent.

Niantic, Pokémon Go’s developer, contends that it is not liable for trespass and nuisance because it neither places tangible objects on private property nor does it control its users enough to proximately cause nuisance. In its motion to dismiss, Niantic argued that the allegations leveled against them for enabling Pokémon Go users to commit trespass were unwarranted. While tort law may prevent the invasion of one’s private property with a tangible object, Niantic believed that virtual objects are excluded from this broad protection. In Niantic’s view, adopting a position that would equate tangible objects with virtual objects would threaten even commonplace practices of numerous online services that place flags on landmarks or allow users to “check-in” at geographic locations.

On a more granular level, Niantic countered that they were absolved of trespass liability because their users agreed not to trespass or violate other laws under the game’s Terms and Conditions. To this end, Niantic questioned whether the plaintiffs could prove that Niantic knew with “substantial certainty” that their users would commit trespass. Moreover, Niantic challenged whether the harm allegedly suffered by the plaintiffs was substantial. In their view, having someone knock on your door a few times doesn’t amount to an actionable nuisance claim. For these reasons, Niantic moved to dismiss the suit entirely.

As the virtual reality industry continues to grow and AR/VR games become more prevalent, the issues raised in the Pokémon Go case will surely remain in the spotlight. Whether one can virtually trespass or be held liable for acts done while engaging with a virtual world will undoubtedly force courts to scrutinize the legal implications of augmented reality experiences. In the meantime, candidates for the next “fad of the summer” should consider themselves warned that it’s all fun and games until they’re being sued.

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