Hit Game Spurs Trespassing Suit -- WSJ

Date : 04/05/2017 @ 7:02AM
Source : Dow Jones News
Stock : Nintendo Co., Ltd. (PC) (NTDOY)
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Hit Game Spurs Trespassing Suit -- WSJ

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By Sara Randazzo 

Annoyed homeowners say "Pokémon Go" players have gone too far in their quest to master the smartphone game -- and they want the company behind the hit application to be held responsible.

A federal judge is poised to decide if a lawsuit alleging the game's developer violated trespass and negligence laws can go forward, a ruling that could have broader implications for makers of games or other software that send users to specific locations.

"Pokémon Go," based on the Japanese franchise popularized by Nintendo Co. in the 1990s, sends millions of players each day searching for Pokémon characters on a digital map. Players gain points by catching the monsters, which appear superimposed into the real world through location-tracking technology and augmented reality.

The court decision is expected in the coming weeks in a case brought by residents in New Jersey, Florida and Michigan. They say the popular game caused hordes of people to physically trespass on their land. They also say the game violates their rights by placing virtual game pieces on or near their private property without their permission.

The lawsuit raises novel legal questions over whether a company can be held liable for the allegedly inappropriate conduct of others, or be found responsible for virtual trespassing. Both issues are likely to gain relevance as more augmented-reality games hit the market. Such games use the Global Positioning System, camera and other elements of a player's smartphone to tether play to their physical surroundings.

"The law here is very messy," said Shawn Bayern, a law professor at Florida State University. "Each state handles it slightly differently."

In a series of lawsuits filed after the launch of "Pokémon Go" in July, plaintiffs claim smartphone-toting players caused disturbances as they hunted for virtual game characters placed at specific GPS coordinates.

Residents of the Villas of Positano on the South Florida coast said hundreds of people began infiltrating the 62-unit complex, parking illegally and even relieving themselves in the landscaping during late-night visits to "catch" virtual characters. Another plaintiff, a New Jersey lawyer, said at least five people knocked on his door asking for access to his backyard.

In Michigan, a couple said a quiet nearby park became overrun once it was tagged as a location in the game, creating a nightmare for neighbors as players stormed the area, blocked driveways and peered in windows. The separate lawsuits were consolidated in U.S. District Court in San Francisco and seek class-action status.

The intrusions, the plaintiffs say, amount to negligence and trespassing by the game's developer, Niantic Inc. They claim not only that Niantic is responsible for players who physically trespassed, but also that the placement of the virtual characters is itself a form of trespassing.

Legal experts say trespass and negligence laws vary in each state and that little, if any, case law exists over how to handle virtual intrusions.

Key to both laws is the intent of those allegedly trespassing or causing a nuisance and whether actual harm occurred. Finding a way to adapt the laws to situations like those raised in the lawsuit is "something that needs to be addressed over the long run because the technology is not going away," said Gregory Keating, a professor at the University of Southern California Gould School of Law.

Niantic, which spun out of Alphabet Inc.'s Google in 2015, is asking a judge to dismiss the case and says the plaintiffs are distorting the law. The company argues that trespass laws only cover physical intrusions, not virtual ones. Such a virtual intrusion "is less invasive than noise, vibrations, dust, or a chemical cloud, all insufficient for trespass," Niantic says in a court filing.

Niantic argues that if software developers are prevented from tying on-screen virtual objects to locations or sending users to specific places, many online services would be threatened. Those could include websites or mobile applications listing real estate open houses or locations where rare birds have been spotted, or navigation systems pointing out shortcuts, "all of which can attract visitors and impact nearby residents," Niantic said.

They further argue that the game requires users to agree not to trespass as a condition of playing, and that if a player overstepped his or her bounds, it shouldn't fall on them. "Niantic does not control millions of players' real-world movements," the company said.

That argument may not hold up in court, said John Nockleby, a professor at Loyola Law School in Los Angeles. The company can't hide behind a boilerplate user agreement, he said, if they know a million users will be tempted to trespass if they place a virtual Pokémon on private property.

The initial fever around "Pokémon Go" has subsided, though several million U.S. users still play it daily and it generates more than $30 million in monthly gross revenue world-wide, according to market-research firm Sensor Tower Inc.

--Sarah E. Needleman contributed to this article.

Write to Sara Randazzo at sara.randazzo@wsj.com


(END) Dow Jones Newswires

April 05, 2017 02:47 ET (06:47 GMT)

Copyright (c) 2017 Dow Jones & Company, Inc.

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