Legal Issues Related to Augmented-Reality Games

Even the excitement of the 2016 Rio Olympic Games could not stop the latest mobile gaming craze that is Pokémon Go as Japanese gymnast Kohei Uchimura racked up $5000 in data roaming charges while playing the mobile game in Brazil upon his arrival.

One would be hard-pressed to have not heard about Pokémon Go by now.  Upon release, it became the top-grossing app in the United States within thirteen hours.  Nintendo’s market value went up an astonishing $9 billion within five days of the July 6, 2016 launch date and it currently holds the title of the most popular mobile game in U.S. history, beating out other heavyweights such as Candy Crush Saga, Draw Something, and Clash Royale for the title.

Pokémon Go is an “augmented-reality” game, which means the game combines a physical, real-world environment with elements that are augmented or supplemented by computer-generated sensory input (i.e., sound, video, graphics, etc.).  Augmented-reality games differ from virtual reality games in that virtual reality games entirely replace the “real world” with a simulated world while augmented-reality games mix the two.  Although it may seem like augmented-reality is a new or novel concept, augmented-reality in media has existed for decades.  A popular example is the practice of superimposing statistics and broadcaster voices over sportscasts on television.  In the past twelve months, technology giants such as Microsoft, Google, Facebook, and Samsung have all invested in augmented-reality technology and research.  It is estimated that $2 billion has been invested in such technology in the past twelve months and that number is expected to rise to $120 billion by 2020.

With this explosion of popularity, however, come a number of legal issues.  First, there are consumer-privacy concerns about what kind of data games like Pokémon Go collect about their users.  Initially, upon release, the Pokémon Go app requested full access to users’ Google Accounts, meaning that the company could access the contents of users’ Gmail, Google Docs, Google Drive, and Google Calendar accounts.  Although this was corrected in a recent patch, Pokémon Go, like other popular gaming apps, still has access to a user’s camera and global positioning system data.

Secondly, there have been real property and safety concerns associated with the game.  Reports of trespassing on private property, muggings, distracted driving, and walking into traffic have raised concerns of legal liability for the developer when game users are injured while playing the game.  Similarly, some homeowners have even filed lawsuits, alleging that the placement of Pokémon on their property is akin to the creation of an attractive nuisance.  This raises new issues of law with such an overlap of real property issues with digital goods.

Lastly, there are numerous intellectual property concerns as well.  For example, some experts have questioned whether the mere placement of protected intellectual property (i.e., Pokémon) on private property could arguably grant ownership rights in the intellectual property to the owners of the real property.  Similarly, while the developers of Pokémon Go urge users to obey the laws of the “real world,” some question how much liability can be successfully contracted away by well-drafted Terms of Use policies and arbitration clauses.  Other intellectual property issues also include questions about the use of protected artwork or copyrights in the game and whether significant use of third-party trademarks is permissible.

Overall, however, as augmented-reality games are so new to the legal landscape, it may take years before we see courts deciding any of these legal issues.  In the meantime, we must counsel our clients on how to navigate the current legal landscape in order to best limit their legal liability.

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