‘Pokémon Go’ Away

By Christopher Smith, Staff Editor, 3L

The class action suit against Niantic, the developer behind Pokémon Go is continuing to move forward. Pokemon Go, is the virtual cell phone game that half the country was playing last summer. The game required players to capture digital creatures called Pokemon. The creators of the game placed these digital Pokemon in actual locations including private residences. In July 2016, homeowners across the country began  filing complaints against Niantic for nuisance and trespass to private property. The complaints were consolidated into a class action suit and filed in the Northern District of California. The suit alleges, among other things, that “the developers placed Pokémon and other virtual objects on private property without seeking permission.” The plaintiffs also allege that it was the placement of these virtual objects which encouraged players to trespass onto private property.[1]

In response, Niantic filed a motion to dismiss, arguing that, “because they only placed objects on users phones and not physically on property they did not trespass and also are not liable for the trespasses of third party players of the game.” However, plaintiff’s argue that because Niantic placed objects related to the game on private property, they knew or should have known this would result in trespass and nuisance to homeowners. On March 23, 2017 a federal judge heard oral arguments, and a decision should come soon. Currently, trespass requires a physical intrusion onto land. The judge expressed concern for granting the plaintiff’s request to expand the legal definition of trespass to virtual objects stating that. “If accepted, it would threaten numerous online services. For instance, creators of apps that display on-screen markers (e.g., a walking tour app that flags landmarks or an app that permits users to ‘check-in’ virtually to a location to connect with friends) could be liable for trespass.” With the burgeoning growth of augmented reality, the impact of this case is sure to be far reaching.

Resources:

[1] JEFFREY MARDER, Individually and on Behalf of All Others Similarly Situated, v. NIANTIC, INC., THE POKÉMON COMPANY, and NINTENDO CO. LTD.

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