(This piece only flags the important legal issues that have spawned with the advent of Pokémon Go. A research paper, discussing the topic at length, will be published soon)
Within 10 days of its release since July 6, 2016, Niantic’s Pokémon Go has become a worldwide phenomenon, with an estimated 21 million active users playing the highly addictive game the world over. The game subtly (or not, ;-)) blurs the lines that separates the real from the virtual, thus giving the users of the app a taste of what it feels like to be an actual Pokémon trainer. The premise of the game is simple and easy to grasp- These virtual monsters have been unleashed in our world and in your pursuit of being the best Pokémon trainer ever, you are to run around with your smartphone hoping to find these digital beings (and catch them) wherever you go. The legal issues that have spawned in the 10 days that this app has been on the Play Store, are unfortunately not so easy to get a grip on.
Pokémon Go makes you explore your surroundings for you to find new Pokémon. You are likely to find Pokémon in areas which resemble their natural habitat. However, what must be noted here is that as Niantic Chief Executive John Hanke avers, creature rarity is entirely random in the game and thus you are no more likely to find a rare Pokémon in a dense forest than you are to find one at India Gate. Thus, it does not make sense to go camping in the most inaccessible of the areas for that ever elusive Ho-Oh. Yet criminals have gotten in on the act and are now setting up Pokestops in precisely these kinds of areas to lure unsuspecting trainers and robbing them of all their possessions, and sometimes, even worse. However, the terms of service of the game disclaim all liability for property damage, personal injury or death while playing the game. This seems unfair in light of the fact, that all the initial Pokestops were vetted and chosen by the designers of the game itself. If a Pokestop shows up on the app, with the likelihood that the digital asset (the Pokémon) is likely to be found in the area, and the app is under the total control of Niantic, is it not reasonable to assume that Niantic should be held liable for any damage caused because of its own negligence?
Another significant issue is, with whom does the property in the Pokémon vest? The terms of service vest no ownership in the Pokémon trainer, but what of the person on whose private property such Pokémon spawns? Clearly, this attracts people, especially kids, to this individual’s house. What happens if such a person is registered as a sex offender, and a child coming on her/his property of his own volition violates residential restriction requirements of the concerned jurisdiction? Would a Pokémon on one’s property qualify as an “attractive nuisance”, thus making the owner of the property liable in tort for any harm that may be caused to the child who had visited the property because of the Pokémon’s presence? The arbitration clause of the terms of service agreement is also particularly callous, and ousts the jurisdiction of Courts with no right to appeal. Of course, one can opt out of the clause by notifying Niantic Inc. within 30 days of download, but the significant legal issue which arises here is whether such a clause, even though optional, holds any validity in law. Also, since the negligent and criminal use of the app is causing much damage to persons and property, should Niantic be subjected to indemnification requirements? If no, then is the player, who trespassed on the property because of the notification on the app, to be held liable? The law governing AR (Augmented Reality) and VR (Virtual Reality) technology is still in its nascent stages. Though, it can be argued that Pokémon Go is not technically an AR game as it does not render virtual images on our surroundings in real time, it is still a location based game and thus cannot be governed and regulated under the legal system that prevails for conventional information technology assets. Certainly, we can expect significant new developments to transpire in the field of AR and VR law, thanks to Pokémon Go and the host of other AR/VR games and apps that it will proliferate in the wake of this new technology catching up the world over.