When the augmented reality game Pokémon Go launched a few weeks ago, it quickly became a sensation. It was swiftly downloaded by millions of people who began wandering the streets to catch the animated creatures at the center of the game. Pokémon could pop up just about anywhere: in a cop car, in a pet store, in your bedroom, or in someone's backyard. But the digital creatures aren't welcome in some yards, such as that of Jeffrey Marder of New Jersey. So many people started showing up around his house, smartphones in hand, hunting pokémon that he is now suing the makers of the game for creating a nuisance and unjustly enriching themselves by using his backyard as a virtual home for the game's cartoon creatures.
From Marder's complaint, spotted by Law.com:
In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.
On Friday, Marder filed a class action lawsuit in the Northern District of California, where game developer Niantic Labs is based, that seeks to represent all those people who have had pokémon or pokéstops virtually placed on their property without their consent. Marder's lawyers at Pomerantz give other examples of unwanted pokémon trespassing: the Breaking Bad house in New Mexico where the yard has been "besieged by intrepid Pokemon Go trainers who may not be aware they’re stepping onto private property;" the Holocaust Museum in Washington, D.C.; and a church converted into a home converted into a pokéstop in Massachusetts.
Marder sued game developer Niantic Labs, Nintendo and the Pokémon Company saying that the "intentional, unauthorized placement of Pokéstops and Pokémon gyms on or near the property of Plaintiff and other members of the proposed class constitutes a continuing invasion of the class members’ use and enjoyment of their land."
This is quite a novel lawsuit. It is laughable, on the one hand, yet it does raise interesting questions around who owns the augmented reality space overlaid on people's real world properties. When you own land, there are limits to how far above and below your house you own. A new question would be the extent of your rights to the new dimension on top of your property that is augmented reality.
It's not an especially pressing question now, but if augmented reality really catches on, and an internet environment overlaid on our real world surroundings becomes common, what will be the rules around using that augmented space? Could anyone put a virtual billboard on the front of your house or would they need your permission? Could people virtually graffiti your business with hateful messages?
Marder's suit seeks to stay grounded in existing law, saying the game's prompting people to enter private spaces creates a nuisance and that the defendants unjustly enriched themselves by encouraging "millions" of Pokémon Go players to invade the private property to create "a more immersive gaming experience, thereby increasing the game’s popularity and profitability." The suit doesn't ask for a particular amount of money, but says that it will be in excess of $5 million.
Niantic Labs did not respond to a media inquiry about the suit, but its website tells players to "adhere to the rules of the human world" and thus not to trespass. The company's website also includes a form where one can ask that a pokéstop be removed from the game.
In the meanwhile, while trying to catch 'em all, avoid private property.