Authored by Christopher Powers, Summer Law Clerk
As you may have heard, Pokemon Go is sweeping the nation, including Central New York.
Pokemon Go is a downloadable mobile app where players try to find different characters from the popular Japanese cartoon and video game on a virtual map based on a user’s actual surroundings. The app uses GPS and other geolocation features on a user’s smartphone to places the virtual characters at local landmarks. Then, the player then must go to the place and use traditional gaming techniques to “capture” the character. Pokemon Go was released on July 7, and has become a worldwide sensation. Within a week, the game already had been downloaded more than 10 million times, according to CNN.
Pokemon Go is being credited with spurring traditionally homebound gamers to explore their communities while getting exercise and also building impromptu friendships among participants.
But it’s not all fun and games, so to speak. The Pokemon Go phenomenon, and the other similar types of so-called augmented-reality games, implicates multiple legal issues, from the simple to the potentially dangerous. The rapid growth and relative lack of knowledge surrounding the game have prompted numerous warnings from law enforcement and other municipal entities about the dangers of the game. Other examples of how the game raises real legal questions include:
- Trespass/Nuisance. The game is meant to be played in public spaces, but there is still potential for game pieces to be placed on private property, either by design or by mistake. Such an instance could potentially create issues of trespass and opens up the concept of “attractive nuisance” (which essentially makes homeowners liable if a child is injured by the homeowner’s irresistible property, like a swimming pool or, potentially, a Pokemon Go game piece.) While it may seem far-fetched to the uninitiated, an interesting discussion about this has already spawned in the comments section of this website.
- Assembly. Even confining the game to public spaces may be problematic in its own way. A blogger for the Hollywood Reporter suggests that the competition for game pieces in augmented-reality games will inevitably spill over into the real world and possibly lead to violence. He also foresees, albeit in the distant future, a time when augmented-reality games will foster First Amendment concerns.
- Robbery. A group of teens in Missouri used the app to lure unsuspecting players to a particular location in order to rob them, according to USA Today.
- Distracted Driving. New York Vehicle & Traffic Law (VTL) § 1225-d prohibits the use of an electronic device while operating a motor vehicle. VTL § 1225-d is best known as the no-texting-while-driving law, but the definitions in the statute would clearly apply also to someone playing Pokemon Go (or any other virtual game, for that matter) while driving or stopped in traffic or at a light. In New York, anyone who uses a “portable electronic device in a conspicuous manner” is presumed to be violating the statute, so it’s best to do your gaming outside the car. See VTL § 1225-d(4).
All things considered, though, Pokemon Go and other augmented-reality games are just forms of entertainment. Since augmented reality is new, most of these issues are speculative and nowhere near settled. For now, enjoy the game, be careful, and be courteous. But don’t be surprised if the continuing evolution of the augmented-reality industry leads to new, unprecedented legal issues.