Here Come the Gamers Again

Harry Potter and Minecraft Prepare to Break New Technological--and Legal--Ground

Screen grab from Harry Potter: Wizards Unite (Wikipedia)

Remember the uproar when Niantic’s Pokemon Go first launched in July 2016? The consternation over large groups of kids roaming the streets while pointing at their phones? The knee-jerk municipal regulations (like the Milwaukee one my firm got struck down on First Amendment grounds)? The clickbait feeding frenzy in the media over anything with “Pokemon” in the headline?

Yeah, that’s about to happen again. Only doubled.

Pokemon Redux: Harry Potter: Wizards Unite

For starters, Niantic’s new location-based augmented reality game, Harry Potter: Wizards Unite, is scheduled to drop in the United States tomorrow, June 21, 2019. If there’s a franchise with enough goodwill to rival the popularity of Pokemon, this might be it. (Of course, it would have been even hotter ten years ago, before the shark-jumping Fantastic Beasts films and while the series’ fans were still mostly kids. But I have faith that Niantic will make the content and game play broadly appealing–and it’s the older fans who can afford the in-game purchases.) Excitement over this game has been brewing for years, long before the rumors of its development were officially confirmed.

Now, I’m certain that things won’t play out exactly like they did with Pokemon Go‘s rollout. For one thing, Niantic has learned and implemented a lot of lessons from that experience. The game now contains a slew of warnings to players to keep them from hurting others or themselves, from trespassing on private property, and even from getting caught in dangerous weather. They’ve forged relationships with retail outlets to sponsor certain game locations. And they endured years of litigation, resulting in a reporting and take-down system that may serve as a model for future games.

And the world is somewhat inoculated now to location-based AR, thanks to Pokemon Go. Society won’t be caught so completely off-guard this time. That said, the world is an unpredictable place, and there are a lot of easily offended people and power-mad municipal officials out there.

Will Minecraft Earth Dig Holes of Legal Liability?

But what I’m more curious about is how the launch of Microsoft’s Minecraft Earth will play out. That, too, is expected to launch this summer. Microsoft has had the benefit of watching Niantic go first, but, despite its long history and wide array of products, Microsoft hasn’t had to deal with the public in quite this way before. Moreover, Minecraft Earth has been described as “a step beyond Pokemon Go” in terms of its game play–specifically, in the persistence and interactivity of its AR content. Pokestops are permanent and fixed in space, but individual Pokemon spawn in random places and separately for each player. Players in the same place may see the same creature, but they interact with it individually.

The entire concept of Minecraft Earth, however, is that multiple players can see and interact with the same content at the same time, as seen in its demonstration at WWDC 2019:

This method of game play heightens some of the safety concerns that are inherent to the location-based AR genre. It’s one thing to have a group of individuals that are distracted by their own phones; it’s another to have that same group to have their attention focused on interacting with each other through their phones. It remains to be seen whether that distinction is one with a difference in terms of the group remaining aware of their surroundings, but there are reasons to suspect that it may be. Interpersonal interaction is more engaging, and its outcome is less predictable than interactions with relatively static content. What’s more, the ability to put AR content anywhere–if that is truly how the game works–reduces the amount of control the game maker can have over where players go.

I’m also eager to see the intellectual property and tort claims that will inevitably spring from the content created in the game. This is a problem Niantic doesn’t have, because they create all the imagery in their games. Minecraft, on the other hand, is all about players creating expressive (and often amazing) works. Some of these will infringe copyrights. The Digital Millennium Copyright Act’s notice-and-takedown procedure is meant to insulate publishers from liability for user-generated content that infringes copyright, but only if the publisher jumps through the Act’s legal hoops, such as providing a contact address for sending the request and registering its contact person with the Copyright Office. It will be interesting to see how Microsoft applies these concepts in AR.

Trademark law, on the other hand, has no such takedown mechanism or legal safe harbor. I have been explaining for years (including in my recent talk at the 2019 Augmented World Expo) that the Lanham Act is a much more promising tool than property law for businesses that want to get unauthorized AR content “removed” from their physical locations. (Of course, it’s not really there–and that matters–but that’s the language AR lends itself to.)

Then there are the slew of other tort theories–defamation, false light, nuisance, trespass, and infliction of emotional distress, to name a few–that creative plaintiff’s lawyers will come up with. If it becomes possible to digitally superimpose Minecraft content on private property without restriction, it will take no time at all before malicious players use that platform to convey less-than-charitable messages about the people who live and work there. Section 230 of the Communications Decency Act is very likely to shield Microsoft and other publishers from tort liability for such content–just like it does for other social media–but how that plays out again remains to be seen.

Of course, all of these predictions come with big, fat asterisks. These companies employ a lot of smart people who have already thought through these issues. We don’t yet know what these platforms will look like, or what protections will be built into them. They will certainly contain warnings against misuse. And like all other digital media, the primary (and perhaps sole) responsibility for how they are used belongs to the user.

But whatever happens with these games, they are bound to break new and fascinating ground, both technologically and legally.

Once more into the breach.