By Habib Olapade
Habib Olapade is a senior at Stanford University studying political science.
Pokémon Go has added nearly $8 billion to Nintendo’s total market capitalization since its debut in early July 2016. Indeed within the short span of two months, the app has acquired more active daily users on Android than Twitter. Pokémon Go is an augmented reality application that runs on users’ smartphones. Once the user downloads the application, the game accesses her phone’s GPS and clock, superimposes computer-generated graphics and sound, and displays an anime-like version of Google Maps to make Pokémon characters appear on the phone’s screen. The game has been credited for marshalling legions of couch potatoes and Generation Y members out of doors.
Augmented reality games such as Pokémon Go, however, come with a distinct set of legal difficulties that courts will have to grapple with. Users often have to trespass on private property to catch Pokémon. Placing Pokémon on private property can create attractive nuisances, exposing owners to absolute liability for injuries trespassers suffer on their property. Finally, the constant movement that is required to play the game makes it inaccessible to some physically and mentally disabled persons possibly exposing Nintendo and Niantic, the game’s owners, to liability under Title III of the Americans with Disabilities Act.
Trespass occurs when an individual impairs a property owner’s right to exclusive possession of her or his land. One’s right to exclusive possession in her land is impaired when an individual is unlawfully and intentionally, recklessly, or negligently present on the owner’s land without the owner’s consent. The trespasser’s ignorance is almost never a valid defense that will exempt him from liability for actual damages. Thus, placing Pokémon on private property can cause errant players to wander into unfamiliar areas and exposes users to liability for trespass. One might argue that this problem can be nipped in the bud by concentrating Pokémon placement in public forums outside the immediate vicinity of the home’s curtilage. This solution is insufficient, however, because it places a small Band-Aid on a deep wound. Pokémon Go is simply the first of many augmented reality video games that Americans will be able to access. As the number of available games increases, so will the demand for public space on which users can play those games without worrying about violating local trespass laws. Chaos may result if there is no central authority that can prevent large numbers of gamers from converging on the same spot at the same time. The matter is even more complicated because the act of playing video games is protected by the First Amendment. Therefore, government time, place, and manner regulations seeking to remedy this problem may be unconstitutional if they are not justified without reference to the content of the regulated speech, narrowly drawn to serve a significant government interest, and leave open ample alternative venues for communication.
Pokémon Go may also expose private land owners to liability under the attractive nuisance doctrine. This doctrine is applicable if four conditions are met. The nuisances must (1) be in a place that the owner knows children are likely to trespass on, the nuisance must (2) expose the children to an unreasonably high risk of death or injury, (3) the utility the nuisance provides to the owner must be slight in comparison to the risk posed to the children, and (4) the owner must fail to take reasonable care to shield children from the nuisance. In other words, an attractive nuisance is something that an owner knows children find irresistible but nonetheless does not prevent kids from accessing – even though the prudent man would. Unfenced yards containing deep swimming pools or uncaged deadly animals are examples of attractive nuisances. Virtual Pokémon are not inherently dangerous. What happens, however, when a child follows a Pokémon onto private property and is then injured by a piece of equipment that is not an attractive nuisance? On one hand, the doctrine of contributory negligence may prevent the child from recovering. On the other hand, the only reason the injury occurred was because an imaginary pet resembling an exotic animal was present on the owner’s property albeit without the owner’s consent. In all likelihood, the child would recover and the owner would then seek indemnification from Nintendo and Niantic.
This hypothetical assumes, though, that the child is able to easily navigate her or his environment. Children, who are unable to do so, may never be exposed to an attractive nuisance lawsuit, but they too have a right to enjoy their youth by tarrying after imaginary pets. Title III of the Americans with Disabilities Act (ADA) secures this right by prohibiting private places of public accommodation from discriminating against individuals with disabilities. Since 2010, the Department of Justice has enforced the ADA against virtual places of public accommodation such as entertainment websites that provide augmented reality applications. Pokémon Go fits this statutory description. Compliance with Title III, though, would not impose an undue burden on Nintendo because the firm can eliminate the need for players to move around their environment by making code adjustments to the geo-spatial placement of augmented reality objects.