Pokemon Go Nuisance Settlement and the Future of Location-Based AR

(c) goopy mart/cc licensed

Once again, Pikachu is leading us into the future of augmented reality.

Since July 2016, the same month in which it first released Pokemon Go, Niantic has been dogged by lawsuits alleging trespass and nuisance. As I’ve previously reported, those cases (including one from my home county) were long ago consolidated into the class action In re Pokemon Go Nuisance Litigation in the US District Court for the Northern District of California, in San Francisco. In the ensuing 2.5 years, various other defendants were dismissed, and we got an eyebrow-raising decision from the judge refusing to rule out the possibility of a “digitally induced trespass” claim.

In November 2018, Niantic first informed the court that the parties had reached a settlement–although settlements in class action cases must be approved by the court. Today, we got our first look at the terms of that agreement, by way of the plaintiff’s motion to approve the settlement. Under the disclosed deal, some money would change hands; as often happens in class actions, that means a handful to the named plaintiffs, none to the rest of the class, and a tidy sum to the lawyers. But this post is concerned more with the bigger picture.

The agreement’s stated goal (according to plaintiffs) is “to prevent the future placement of virtual game items on private property, and to promptly address future complaints of trespass and nuisance by Pokémon Go players when they arise.” Specifically, Niantic would maintain a form on its website through which property owners can submit complaints “believed” to be related to Pokemon Go players (pity the staffer who handles those calls; one can only guess the range of behavior that irate residents will blame on the game), and to request removal of any Pokestops or Pokemon gyms. Niantic would then use “commercially reasonable efforts” to respond to such complaints and requests within 15 days, and to comply with removal requests within 5 days thereafter. The agreement clarifies that removal may be requested by any single-family home owner within 40 meters, regardless of whether they’ve experienced an issue. Niantic would also agree to comply with public parks’ requests to shut off access to Pokestops and gyms outside of park hours, and to add additional warnings to players. These terms would all be in place for a period of three years.

The impact on Pokemon Go gameplay from this arrangement should be negligible. Niantic has already been fielding removal requests, albeit in a less rigorous or predictable fashion. And it’s made great strides in securing sponsored, commercial locations for its waypoints, and otherwise placing content in indisputably public spaces. Predominantly residential areas have never been a hotspot for Pokestops anyway. And individual creatures will continue to randomly spawn wherever a player is located, including in or near residences.

Rather, as with the resolution of any legal case, the most interesting aspect of this self-imposed restraint will be how it is regarded and applied in subsequent disputes. Location-based AR began as the Wild West, with content placement guided by no more than what seemed best to those doing the placing. There is still no enforceable legal framework that applies to any other company (or, it appears, even to any other game), and I’ve argued repeatedly that the First Amendment applies to expressive decisions in location-based AR. But even in the Candy Lab case I litigated in 2017–in which the court struck down an overbroad Milwaukee ordinance regulating Pokemon Go-type content in public parks–the decision held that the ordinance was not reasonable as to “time. place, and manner.” It stopped short of saying the content could not be regulated at all (though whether it should have is a question for another day).

No one can force another AR company to abide by this agreement. But those who come first tend to chart a path for those who follow. It may become easy for smaller AR companies to point to this agreement as a model, and for aggrieved residents to complain about companies that do not abide by these standards. And the more who do so, the easier it will be to support an argument that such rules have become an “industry standard” by which future tort claims can be measured. Even voluntary limits can become enforceable by the Federal Trade Commission and other agencies, if industries agree to them.

For now, though, this is just an agreement between two sides to resolve one lawsuit. The future is still up to us all to shape.