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Is PokemonGo Illegal?

This past week Nintendo unleashed Pokemon Go in U.S., Australia and New Zealand and subsequently jumped in value nearly 8 billion dollars:

Why? As Forbes notes, it’s about to surpass Twitter on Android in daily active users. It’s insanely popular. More people have installed Pokemon Go on their Android devices than Tinder, which makes it more popular than sex if you want to think about it that way.

is pokemongo illegal

What Is Pokemon Go?

So what the hell is Pokemon Go? Bloomberg has a good primer if you want to get up to speed:

After downloading the app and creating a character, users see an anime-like version of Google Maps that hides street and area names, and replaces real-life landmarks with Pokemon-specific buildings. As users navigate the real world, their in-game character mirrors their movements and will randomly encounter Pokemon characters which, with luck, they’ll be able to capture and add to their team.

augmented reality smartphoneEssentially, Pokemon Go is an augmented reality application that you download to your smartphone. Augmented reality (AR) is a live direct or indirect view of a physical, real-world environment whose elements are augmented (or supplemented) by computer-generated sensory input such as sound, video, graphics or GPS data. It superimposes computer-generated graphics and sound via an electronic device, typically a smartphone.

So at the moment, people are running around the world with their smartphones out, trying to capture virtual pets. Not exactly my cup of tea, but whatever floats your boat.

But because we can’t have nice things, people are already using it to lure children out and rob them.

“The way we believe (the app) was used is you can add a beacon to a Pokéstop to lure more players,” the O’Fallon Police Department wrote in a Facebook post.

The app, which allows users to interact virtually with Pokémon characters nearby in the real world, has a “Lure Module” that players can use to attract both Pokemon and other users to their location. Pokéstops are locations where players can collect items and level up faster.

Despite having been around for a decade, augmented reality is still in its nascent stages of development. Pokemon Go is the first big, breakaway hit. If you hop on Twitter or Insta and look for #pokemongo, you’ll find thousands of people posting pictures of themselves in all sorts of places, trying to capture Pokemon.

Wherein Lawyers Ruin Everything

But should they? Should Nintendo & developer Niantic have given more consideration to where the Pokemon (AR objects) are placed? Do they have the right to place them wherever they want? In a lake? In a public park? In your backyard?

  • Does placing an AR object on a person’s property, without their permission, affect their interest in exclusive possession of property?
  • Does owning property in “the real world” extend property rights to any geo-locative, intellectual property elements that may be placed on it?
  • Is placing an AR object on a person’s private property, without their permission, a creation of an attractive nuisance?

Trespass

Trespass is an injury to possession. It is tort against possession committed when one, without permission, interferes with or invades another’s exclusive right to possession of property. It involves an intrusion that invades a possessor’s protected interest in exclusive possession. The term “intrusion” denotes that a possessor’s interest in the exclusive possession of his or her land has been invaded by the presence of a person or thing upon it without the possessor’s consent 75 Am. Jur. 2d Trespass § 1.

Trespass is about exclusive possession. It’s an affirmative act interfering with possessory rights.

  • To constitute a trespass (a tort) there must be an unlawful physical invasion of the property or possession of another.
    Dickie’s Sportsman’s Centers, Inc. v. Dep’t of Transp. & Dev., 477 So. 2d 744, 750 (La. Ct. App. 1985)
  • Liability for trespass may be imposed only if the trespass is intentional, reckless, negligent, or the result of ultrahazardous activity. 75 Am. Jur. 2d Trespass § 5
  • The law undoubtedly is that any unauthorized entry on the land or premises of another is a trespass; and this is true even though no force be exerted (Kimball v. Custer, 73 Ill. 389); and ignorance or mistake of the trespasser will not exempt him from liability for actual damages. Checkley v. Illinois Cent. R. Co., 257 Ill. 491, 499, 100 N.E. 942, 945 (1913)
  • Every unauthorized entry is a trespass, even if no damage is done. Aguilar v. Morales, 162 S.W.3d 825 (Tex. App. El Paso 2005)

You might argue that AR object aren’t real. That they don’t constitute a physical invasion of property. But:

  • To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff’s possessory interest; and (4) substantial damage to the property. Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 2 A.L.R.4th 1042 (Ala. 1979).

Does your exclusive rights to property extend to cyberspace? Can someone place lights, sounds, objects, that are only viewable with technology assistance, on your property without your permission? 

Attractive Nuisance

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

  • (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
  • (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
  • (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
  • (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  • (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts § 339 (1965)

Translated from legalese, that means that some things are so irresistible to kids that they can’t help themselves. And if you own the irresistible thing, you’re held liable for injuries that kids sustain while playing with it.

For example, railroads were originally held to be attractive nuisances to children in the past. If you own a pool, you’re likely familiar with the concept as well. Property owners are generally held liable for any injuries or deaths that take place in or around the pool, even if the victims were trespassing, scaled a fence to access it, or used it without the homeowner’s permission. It doesn’t matter that you didn’t invite them or that they snuck in.

Big Questions

  • By placing AR objects (Pokemon) on private property, have Nintendo and Niantic been creating attractive nuisances?
  • Is it reasonably foreseeable that a child would scale a fence to catch a rare Pokemon? Were Nintendo and Niantic negligent in their placement of the Pokemon (AR objects)?
  • Do they owe a duty of care to not place the Pokemon on private property or dangerous locations (especially given that people are already using the application to set robbery traps for people)?

If something does happen to a trespasser while trying to catch a Pokemon on private property, the property owner would likely continue to be strictly liable to a trespasser for an injuries that occurred, but it also seems likely that they would have a right to seek indemnification (where one party bears the monetary costs, either directly or by reimbursement, for losses incurred by a second party) from Nintendo and Niantic.

Augmented Reality is new. So new that the law hasn’t even begun to broach the topic. It lends itself to lots of big, novel questions from a legal perspective. At the moment, they are unanswered, theoretical questions.

But with the release of PokemonGo on the world, Nintendo has pushed these questions from theory, to reality.

P.S. – If you want to read more Pokemon Go analysis, I made another post asking if Pokemon Go (and augmented reality in general) must comply with the Americans With Disabilities Act.

Update (July 13, 2016):

And of course, the individual below has “retired.” In the PokemonGo Terms of Use, it quite clearly states:

(viii) Use any Service for the benefit of any third party or transfer access to the Services to any third party;

and also a term under their use of Player Trainer Club Accounts: (iv) Never use another person’s PTC Account.

Who woulda thought??? Lulz.

Update (July 12, 2016):

Quick note, hiring someone to hunt down Pokemon for you by sharing your account with them a la the below picture, could be construed as a federal crime in the near future:

CnL-reMW8AA3KSS

To everyone pointing out to me that lawyers ruin everything, my reply:

27 comments

  1. Funny thing is Niantic didn’t exactly place any of these AR locations. They were all player submitted locations from Ingress. In Ingress, if a player came across a location they thought should be a portal, they submitted it for review. If it got approved, a portal was placed there.
    When Niantic created Pokemon Go, they simply pulled their locations from those previously user submitted. That means if someone tricked Niantic into putting a portal in their back yard for easy farming, they may find themselves with a PokeStop in their back yard now. In essence, if they’re getting trespassed on, they kind of did it to themselves :-p

    • Yeah basically I think or them to be able to sue they would have to prove that someone who does not own their property put a PokeStop on it without their permission.

    • Not necessarily the same “they” though. If you sell your house, you may be obligated to disclose problems with it that may affect its value. Does that include “it has a Pokestop on it”?

      • I did think about that scenario, however it still remains that it isn’t Niantic who did it. They actually had rules that things weren’t supposed to be on someone’s private property, but people got creative and found ways to trick them with “artistic” bird houses and crap just so they could farm within the comfort of their home.

        • In which case they should clean house and start from scratch because that says to me the original list is tainted. When the people “cheated” with Ingress they weren’t informed that the information would be used in another game. (That said, maybe there’s some small print that did in fact say this, of course.)

          • They actually have a form on their website were you can request removal of any points that are causing problems or are inappropriate.

        • Niantic did do it because they chose to port the locations across. That could only be done by a deliberate decision. It is also reasonably foreseeable that not all locations would be appropriate so porting them without checking would be unreasonable.

      • The guy whose house, a converted church, was designated a gym was quoted as saying he has concerns about it’s impact on its property value. So it’s very possible that “Pokestop” might actually be something you need to disclose.

  2. Ooh, intriguing!

  3. The thing is that you don’t actually need to enter someone else’s property to catch pokemon or even access the pokestops. As long as you are within the proper radius you can access all the pokemon and stops. So I don’t think this is as much of an issue as it’s being presented.

    • This is the #1 thing that people who don’t play the game need to know in order to have intelligent conversations about it: you only need to get within 40 meters of something to interact with it in the game.

      As a general rule — I’m sure there are exceptions — all important sites in the game are public places, or accessible from a public street without trespassing. The pokemon themselves are often on private property: many, *but not all*, can be caught from a nearby public street.

      • When people submitted these spots for Ingress, they liked making places hard to get so people couldn’t take over their portals or easily break their fields. As such, if someone happened to be an employee with access behind an otherwise locked fence, they could register a hard to get spot as a portal.
        One of them that I’ve got in mind is a water tower in Vancouver, WA that you cannot get within 40 feet easily at all.
        There was a beautiful sculpture in the middle of the building I worked in at the time and I was able to submit that because technically the building is open to the public during the day. At night, though, you have to pretty much press yourself up against one of the glass doors to reach it and hope your GPS was capturing your location accurately.

      • disqus_0PtLV9c2IT

        Well, apparently people who DO play the game don’t know about the 40 meter proximity thing either, since hoards of kids continue to enter private property to catch the pokemon instead of stopping at 40 meters away. It’s especially great when the monsters are found on higher floors in a private commercial building!

    • It is if you have a bunch of people standing on the sidewalk in front of your home or business. And also be real – most players won’t know this rule applies anyway. Property owners who don’t want players anywhere near them should be able to opt-out, it’s as simple as that. There will be plenty of other locations available. I’d even go so far as to suggest residential areas in toto be blacklisted and just restrict people to public parks, etc. But that might be harder to accomplish in cities with higher density.

      • No, if you play the game, it’s really very evident right away how far away you need to be to use a particular location or catch a particular pokemon. The graphic changes on screen when the given distance is reached.

  4. I don’t really see how a pokéstop in Pokémon Go is anymore ‘there’ than a point of interest ‘pin’ on Google Maps is there. Surely a pin on Google Maps could also be considered an ‘attractive nuisance’.

    • disqus_Ysg3mo4g2J

      That’s because you’re popping off without understanding the game. Those points on the map are places where people will physically go to capture monsters. Real people are gathering at a Starbucks near me because it’s a spot on the map. How many people need to show up before it interferes with your business?

      • Then you’re obviously “popping off without understanding” business, as you’re obviously not a business owner. I would kill to have a lot of people gathering in or near my business, specially if I owned something like a Starbucks. People gather, they talk, they buy coffee, tea, or other drinks.

        • It depends on your business. The intention is that business owners will be able to pay for feature that increase the number of players coming to their location. The problem is not all private property owners, or even all businesses, want that sort of traffic. For many property owners it is a nuisance and for some it may increase their operating costs.

  5. My main concern is that any property owner should be given the ability to opt-out. If it’s a church, a municipal building, a store, a private residence, a museum, doesn’t matter. Many people will have no problem with it, but there will be businesses, for example, that want nothing to do with it. For example, a movie theatre won’t want people using their phones during a movie to capture them. There’s already been reports of strip clubs having them. And there are reports of people playing the game not just at the Holocaust Museum in DC, but at Auschwitz itself. Just as people are able to almost instantly have images taken down from Google Street View there should be a clearly state and near-instant mechanism in place so that if anyone wants to opt-out, they can. Even if you just need to stay on the sidewalk to do it, it doesn’t matter. People should be allowed to say “No, nowhere near my property. Go away.” Just as there should be a mechanism so businesses, churches, etc that DO want to attract people should be able to opt-in. Goes both ways.

  6. It’s ok….Ill just shoot trespassers…

  7. At its most basic level, people need to be taught/reminded that just because some colored pixels on a 4 inch screen indicate that you may be able to make those pixels change in a way that’s entertaining to you, does not give you the right to trespass on private property. The same logic applies to pool hopping. It might be a hot day out, but it’s still trespassing. I play Pokémon GO regularly. I see some PokeStops that are in fact in people’s yards. I just don’t bother going there. I stick to my favorite, widely publically accessible spots.

  8. I don’t understand why some people are acting as if “the land near one’s property” is effectively the property of that person. It isn’t. The sidewalk outside of a business does not belong to the business’ owner; it is public property that I and any number of people can stand on at any time. This “I should be able to say ‘I don’t want people near my property, even though they have every legal right to be there'” is really just “I feel like I own everything near my property and should get a say in how people use public property.”
    Further, if we’re using these b.s. “extended property rights,” what if one business says “no, nowhere near me” but the one next door says “hey, make my store a gym!” Who gets their way? This is why we can’t allow people to have control over property that isn’t theirs. If you can reach everything from public property, there should be no issue.

    • Actually, under the ancient tort doctrine of nuisance, property owners do have a right to regulate, to some degree, the use of other property adjacent to their own. If an activity interferes with the reasonable “quiet enjoyment” of private property nearby, it is a nuisance and can be stopped by injunctive relief. In general, for activities to be immune from nuisance attacks, they must be explicitly allowed by permit or zoning or accepted as customary. But like Uber and Airbnb, I doubt Niantic has bothered to get use permits from any municipality in the world.

  9. A WILD TRESPASSER APPEARS!

    >FIGHT
    PkMn
    ITEM
    RUN

  10. Any Lawyers want to work with me on a suit where I had many customers in line (over 4000+ made it through the door) at a fairgounds that my company rented. The Fair staff kicked out an untold number(some reports were stating 50 people at a time) over the course of 2 days for playing pokemon go while waiting in line.

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