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<strong><em>The following guest post was authored by&nbsp;Benjamin P. Nimphie, a J.D. candidate at Boston University School of Law and a 2018 Summer Associate at Warner.</em></strong>

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If a tree falls in the forest, and no one is around to hear it, does it make a sound? By the same token, if a valuable Pokémon is digitally placed on your lawn, is the company whose algorithm spawned that Pokémon guilty of trespassing if a nearby gamer enters your property to catch it? A recent development in a class-action lawsuit against Niantic, the company who developed Pokémon Go, suggests that “AR-induced trespass” may need to be a concern for augmented reality developers in the future.

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But first, some background. In July of 2016, plaintiffs from several states sued, claiming that strangers have repeatedly been trespassing on their property. According to the complaint, these strangers have been showing up on or near the plaintiffs’ property to either catch Pokémon or use Pokémon gyms that are located there. Since being filed in 2016, the plaintiffs’ lawsuit has gone through several phases. Initially, Niantic succeeded in obtaining a dismissal on procedural grounds, but after the plaintiffs refiled, the company found itself back in court. Most recently, in March 2018, Judge James Donato of the U.S. District Court in the Northern District of California denied an attempt by Niantic’s attorneys to dismiss the case a second time. Judge Donato indicated that, because laws around digital trespass are unclear and this case presents a “novel issue” the suit should proceed. On either side of this legal tug-of-war, there are contentious arguments as to whether “AR-induced trespass” should be recognized and enforced.

Niantic’s primary arguments against the trespass claim can be distilled down to this: before playing, Pokémon Go users have to acknowledge terms and conditions stating they will not trespass or create a nuisance, and further, no one at Niantic caused a Pokémon Go player to trespass on someone else’s property. Niantic’s attorneys also point out that a trespass claim requires some kind of physical intrusion to pass the legal test, and that by “extending the law” to reach this case, the District Court would be redefining trespass in a way that existing precedent simply doesn’t support.

The plaintiffs, on the other hand, argue that by "placing" Pokémon game collectibles on private property, Niantic effectively encouraged players to trespass on plaintiffs’ land. Furthermore, plaintiffs argue that Niantic knew, or should have been reasonably certain, players would do so. During the hearing on the recent motion to dismiss, the plaintiffs’ attorney stated that Pokémon Go has created a “new way of violating land rights that we haven’t seen before.” Plaintiffs’ interpretation of trespass law suggests that Niantic simply had to be “substantially certain” that trespass would result from placing Pokémon or Pokémon gyms on private property. Finally, the plaintiffs argue that Niantic has impaired property owners’ right to exclusive possession of their property and that this impairment violates public policy.

To be clear, the lawsuit is not about just the virtual objects being placed on private property; no claim is based only on digital objects being placed in a particular location. Rather, it is about the digital objects leading people to physically trespass and whether that induced trespass is Niantic’s fault. Both parties agree that there is no prior case that provides a roadmap for what to do in a digital trespass case, or what the scope of a digital trespass claim might be.

At this early stage in the litigation, it is difficult to predict how the court will rule. More will be revealed after the discovery process puts all the facts on the table, but the denial of the motion to dismiss shows the Northern District of California considers AR-induced trespass to be at least a plausible legal claim. In denying the motion, Judge Donato stated that “open questions and closing the courtroom door do not go together.” The “open questions” refer to the gray area in nuisance law when it comes to augmented reality. If Niantic loses the case, AR companies will have to rethink the way they do business. A ruling for the plaintiffs here could lead to AR companies significantly changing their algorithms, and it could even give pause to companies considering entering the AR space. Holding AR companies responsible for their users’ actions is a slippery slope, and it would create a host of new questions for the industry. Are AR companies responsible for all their users’ actions? How closely linked would the action need to be to the AR program? What if a user is operating more than one AR program at a time, who is then responsible?

Although the future is anything but certain for augmented reality and its interaction with trespass law, the Pokémon Go case might point AR companies in a new direction. The more likely it is that AR companies will be held responsible for their users’ trespass, the less likely those companies will be to innovate new ways of augmenting the world around us.

Augmented Legality

Emerging Media and Technologies

Associate

Benjamin P. “Ben” Nimphie

Partner

Brian D. Wassom

Information Technology Transactions

AR-Induced Trespass May Yet Be a Thing

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AR-Induced Trespass May Yet Be a Thing

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