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Pokémon Go Away: Property Owners Suing Pokémon GO

The phenomenon that is Pokémon GO has swept the nation and the world. However, as this blog has addressed in the past, the way the game works has the potential to draw many different kinds of legal liability.  Less than a month after its release our predictions have come true, the companies behind Pokémon GO–Niantic, the Pokémon Company, and the Nintendo Company–have been slapped with a class action lawsuit.

Pokémon GO is an augmented reality game. Players walk through the real world and find Pokémon that appear in random locations throughout the world.  In order to catch Pokémon, the players must walk within a 40-meter radius of the Pokémon’s GPS location.  The game also includes “PokéStops” and “Pokémon Gyms” which allows players to gather resources or asymmetrically battle other players so long as they are within that 40-meter radius of its location.  Players can even use resources earned in the game to apply a “Lure” to a Pokestop–making Pokémon (and eager players) come to that location.

The lawsuit, brought on behalf of New Jersey personal injury lawyer Jeffrey Marder, alleges that Pokémon GO creates a nuisance and unjustly enriches itself through its use of private property as locations for PokéStops, gyms, and Pokémon without permission from the owners.

The world of augmented reality games is a very new one, and full of new issues of law and fact. Both of the charges of this lawsuit raise new and interesting issues.

A Poké-Nuisance

A nuisance claim requires a showing of an unreasonable, non-physically invasive use of their property where the use substantially interferes with the quiet use and enjoyment of that property.

Non-physical invasions can include things like loud noises, pollution, vibrations, or excessive light. Here, the lawsuit argues that the invasion is the additional foot traffic of players coming to catch Pokémon and use PokéStops, the noise they make, and the occasional gamer walking up to your door and asking if they can come in and catch a Pokémon. Due to the fact that nuisance does not require a physical invasion, the fact that PokéStops only require people to come within a 40-meter radius does not prevent liability.  A PokéStops on or near your property would still suffice, so long as it created an invasion that could be called a nuisance.  So the question is, does this rise to the level of a nuisance? Pokemon Go 3

An invasion needs to fulfill several requirements before it is considered to be a nuisance. First, the invasion must be a foreseeable result of the actions of the person accused of nuisance. In this case, the goal of the PokéStops is to draw as many players as possible into the game.  Thus, it seems clear that people using the PokéStops that you place is foreseeable.  It also seems foreseeable that where a large group gathers around private property, their presence could be noisy and disruptive–although there is some argument as to how much disruption could be predicted.

The invasion must also be substantial–more than the usual noise off the street. This is a tough standard to break down, as it highly fact specific. Whether a specific PokéStop has actually created a nuisance might depend on exactly how many people were drawn to the PokéStop and what they did while they were there.

Finally, the invasion must be unreasonable. In order to determine this, the court looks at several factors–how bad the harm was, how long the harm went on, how hard it would be for the defendant to prevent the harm, and the value of the defendant’s conduct to society.  The balance of harms here would, once again, depend on the exact extent of what happened.  However, it probably wouldn’t take a great deal to outweigh the difficulty of not using these locations and the social benefit of a mobile game.

As it is, the actual harm that has been shown by Mr. Marder is pretty tame–maybe not rising to the level of a true nuisance.  However, augmented reality is new.  There is no case addressing whether placing digital landmarks on or around your property could be–by itself–a non-physical invasion of your property just like smoke or excessive light.

This nuisance case has some question marks moving forward, especially considering it contains never before addressed issues. However, it’s also notable that the lawsuit doesn’t bring a claim for trespass–a similar claim to nuisance but with a physical invasion of the property.  This is probably because any trespass that has taken place was done on the initiative of the players, not Pokémon GO.  Pokémon GO has a trainer guide which advises players to always respect the community and adhere to the rules of the real world.  Their terms of service require players to not violate the legal rights of others.  It’s unlikely that Pokémon GO would be liable for the trespass of their players.

Unjust Enrichment

The lawsuits second charge, unjust enrichment, is one of oldest concepts of law–people shouldn’t be able to unfairly get ahead at the expense of another without compensating the other person.  In order to establish a case for unjust enrichment you need to show just that, along with the fact that equity demands you be repaid for what was taken from you.  This issue is especially important in this lawsuit because it represents the majority of the potential for damages in this case.

The lawsuit argues that by using the private property for their games, they have increased the value of their game. They argue that, because they did not pay or even ask permission for this use, they have been unjustly enriched.

Whether this gives rise to a case for unjust enrichment hinges on one very important question.  A question that has not been addressed by the courts before and will change the future of augmented reality gaming.  Does owning property in “the real world” extend property rights to any digital, location specific, intellectual property elements that may be put on it?  If so, not only does the lawsuit have a strong case for unjust enrichment, it would make augmented reality gaming incredibly expensive to implement.  It would essentially force game developers would limit their games to public areas.

The Pokémon GO Lawsuit Going Forward

The lawsuit has already led to action by Niantic, they’ve issued an update with specific warnings not to trespass built into the game. They’ve also promised to be more transparent with the process of removing PokéStops, a function which has always been available.

It’s not surprising that they’re taking the lawsuit so seriously; the lawsuit seeks damages in excess of $5M–although it is not specific about what, if any, damages Mr. Marder has suffered–and an order preventing Pokémon GO from using private property without permission. An order like that would make it much harder for an augmented reality game to function, especially where nuisance law prevents you from even bringing players into the immediate vicinity of private property.

Augmented reality is new and it’s huge. This isn’t the last case we will see dealing with these issues.  For now, we’ll have to wait and see whether this case will change the landscape of these games forever.

Jonathan Lurie

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