No doubt that by now you’ve heard of Niantic and the Pokémon Company’s latest worldwide craze – a little app called Pokémon Go. And you’ve probably even heard of the lawsuit they are now facing and all the media’s clever headlines about it (Pokémon No Go, Pokémon Go Away, Gotta Sue ‘Em All). But what does it all mean? Is this lawsuit the first of many or will it stand alone? Does the suit even have any merit? Are the companies involved just a clever cover-up for a modern day Team Rocket?
Well, probably not that last one.
Pokie-mans? What is This Nonsense?
For those who aren’t already part of the Pokémon Go phenomenon, it’s an app ready to download on both iOS and Android devices. More specifically, it’s a free-to-play, location-based augmented reality game that lets aspiring Pokémon Trainers catch their favorite cartoon creatures in the “real world.” (I found a Nidoqueen today. It was epic.) If you’ve noticed an influx of people walking around your area, looking at their phones and saying things like “Wartortle ran away! Aw Man!,” “I’m almost out of Pokéballs,” or “Team Valor is way better than Team Mystic” (which is true, in case you were wondering), then you’ve already seen some of the effects of Pokémon Go.
So What’s This All About? I Just Want to Catch ‘Em All
I know. Don’t we all? Perhaps not. As it turns out, there are some who are less than enthused about the newest craze – and, this month, a New Jersey man chose to voice his complaints via class action lawsuit.
After Pokémon Go’s release, plaintiff Jeffery Marder began finding an unusual amount of strangers lingering outside his home. These strangers turned out to be real life Pokémaniacs, hoping to get one step closer to being Pokémon Masters. Apparently, Marder had some rare Pokémon spawning in his backyard. The lawsuit alleges that the influx of people near his property makes it nearly impossible for him to enjoy his private property and that Niantic, Nintendo and The Pokémon Company are at fault.
His complaint goes on to say that by placing Pokéstops and Pokémon Gyms (in-game locations for gathering items and battling other trainers) at GPS locations on private property, Niantic and friends are violating the rights of homeowners and encouraging trespassing.
Could The Companies Behind Pokémon Go Actually Be At Fault?
The lawsuit boils down to a couple key questions. Is the game inviting people to trespass on private property? And are the companies behind the game profiting from it?
These are fairly straightforward legal questions, but augmented reality is still uncharted territory when it comes to the courtroom. It will be up to the court to answer a handful of trickier questions as well.
- Do the game’s locations constitute an invasion of private property? (which would suggest that real world property claims extend into cyberspace)
- Do Pokéstops and Gyms create an attractive nuisance?
- If players are trespassing, does the fault lie with Niantic or the player alone?
- When do we get to catch Mewtwo?
Again, probably not that last one. But, there are some interesting points here and a court ruling could set the standard for how cases involving augmented reality are handled in court. The laws specific to augmented reality are virtually nonexistent at this point, but the law evolves as we need it to. We didn’t have the Telephone Consumer Protection Act until robocalling became a well-known practice so it’s possible that the game that brought so much attention to augmented reality could lead to the court system developing laws to better handle similar cases in the future. The Pokémon Act of 2016, anyone?
What About Other Types of Lawsuits?
Now, this may be the first lawsuit to hit the companies behind Pokémon Go so far, but it isn’t the first incident that made people question the companies’ liability.
Players distracted by their phones have accidently fallen down cliffs, crashed their cars and certain ruffians have even used the app’s in-game mechanics to attract unsuspecting players so that they could rob them. So, are we about to see an influx of personal injury lawsuits? Could Niantic and company be held responsible when its players get hurt on a Pokémon adventure?
If Niantic’s plan holds firm, then probably not.
Niantic’s Special Move – Arbitration Clause
Yup. Mandatory arbitration. We’ve written about it before and it keeps coming up. Arbitration clauses are nasty things. Companies bury the clause within a wall of text and, by agreeing to the terms of service, consumers sign away their legal rights.
If you play Pokémon Go, then you’ve been subject to an arbitration clause. That means that unless you notify Niantic within 30 days of downloading the app that you are retaining your right to a trial by jury or to participate in a class action, you have to settle your claims in a privatized arbitration system instead.
The final decision would have to be up to the court in this situation, too. Occasionally arbitration clauses are overruled so a lawsuit can proceed, but most of the time they aren’t. And arbitration rarely favors the consumer.
So, if you’re a player out there, have fun, stay safe, steer clear of private property and, if you started playing less than 30 days ago, email Niantic and hold on to your rights.