Pokemon Go, I Sue You! Minimizing Legal Conflicts with Geo-fencing.

October 26, 2016

With the release of “Pokemon Go” in July 2016, the real world was invaded with virtual monsters. Armed with GPS-enabled smartphones, players, called “trainers,” explore the real world to locate and catch these virtual monsters, or “Pokemon.” The game also designates real world landmarks as virtual “Pokestops” and “Gyms” were trainers can resupply on in-game necessities and battle their Pokemon for control of the area. However, the drive to “catch ‘em all” is testing global property laws when placement of these virtual structures and monsters are unwelcome. Pokestop and Gym placement on private property has led to at least three class action lawsuits in the U.S. and one in Canada. Other Pokestop and Gyms have raised controversy such as placement in the Pentagon, the U.S. Holocaust Memorial, and… nature preserves?
As many State and National Parks seek to boost visitation and connect with the younger, technophile generation, Pokemon Go seems like the perfect panacea. The game has been wildly successful in getting players outdoors and moving—increasing U.S. activity levels by 144 billion steps in just 30 days—and this has indeed translated to a boost to National Parks. However, the game is also causing problems for Parks. Three Pokéstops in Singapore’s nature reserves are located in sensitive, off-limit forest,

leading players off-trail where they may trample vegetation, disturb wildlife, and otherwise damage the environment.

Pokemon in the Netherland’s protected beaches of Kijkduin, named the Pokemon capital of the country, has attracted thousands of players, potentially damaging the dunes.
While Niantic, the game maker, has instituted a request system for removing a Pokéstop or Gym via their website, the Singapore National Parks Board’s appeals have gone unanswered since August. Further, Pokestops and Gyms are only half the problem, and no such request system exists for Pokemon spawning. Authorities in the Netherlands’ attempts to contact Niantic since mid-August were also unsuccessful… until they filed suit. The case was set to be heard on October 11th, when Niantic withdrew all Pokemon from the area.
Authorities in the Netherlands suggested toning down spawn rates, or turning off Pokemon spawning between 11:00 pm and 7:00 am. While Niantic has integrated fixes for other legal problems, such as turning off spawning when travelling above 30 mph to limit playing while driving, and time sensitive play would likely also cut down on criminal acts against players, one possible solution to location-based Pokemon-spawning problems seems obvious: Geofencing.
A geofence is a virtual barrier within the real world and has an almost limitless number of uses. The mobile app Yik Yak has already instituted geofences around schools after bullies took advantage of the app’s anonymous nature. Geofencing off-limits areas of National Parks and Preserves to Pokemon spawning may be a good start, but geofencing could also be used to turn off Pokemon spawning when a player breaks from an approved trail, or perhaps even reduce Pokemon spawn rate when too many players enter an area. However, any of these strategies would have to be implemented on Niantic.
It’s unclear how a suit like the one in the Netherlands would be settled anyways. The current state of the law is inadequate to address the intersection between virtual reality and real property, and it is unclear what rights landowners have to their property in the virtual realm. In this uncharted legal territory, Niantic should work with affected parties to minimize conflicts strike the proper balance, perhaps utilizing geofencing technology.
 


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