hile some reports state that its wild popularity may be waning, there is no denying that Pokemon Go, the “augmented reality” mobile game application developed by Niantic, Inc. and partially owned by Nintendo, was the digital hit of the summer of 2016. Since exploding onto the scene in early July, much cyber-ink has been spilled lauding the record-breaking success of Pokemon Go, which boasts an unprecedented 100 million downloads in its first month of operation and an aggregate figure of approximately 500 million downloads to date. The app is on track to hit $1 billion in revenue by the end of the year.However, many in the legal, business, and technology industries have also criticized the app for the myriad legal questions it raises, particularly concerning the swarms of Pokemon Go players searching, with apparent disregard for their surroundings, for virtual Pokemon creatures randomly placed by Niantic across the world on both public and private property. It took less than a month from the app’s release in the United States for the first civil lawsuits to be filed against Niantic, The Pokemon Company, and Nintendo. Surprisingly, the suits were not grounded in personal injury, but rather, the tech companies’ liability for one of the oldest common law torts: users’ trespasses onto private property, and the resulting “nuisance” to landowners.
For the uninitiated, Pokémon Go is a free-to-play, location-based augmented reality mobile game developed jointly by Niantic Inc. and The Pokemon Company, which is 32% owned by Nintendo. The game allows players to use their smartphones to locate, catch, and train Pokemon – fantasy creatures with unique abilities – then pit their creatures in virtual battles against other players’ creatures. The app uses GPS coordinates to digitally plant the Pokemon characters randomly in real-world locations and uses players’ smartphone camera and gyroscope features to superimpose images of Pokemon characters over players’ real-world surroundings. Niantic’s virtual world also contains “Pokestops” and “Pokemon gyms” – simulated locations (which correspond to real-life locations) where players can access in-game items helpful to gameplay.
By their nature, Pokestops and Pokemon gyms lure players to congregate in large groups, and their random placement means that bands of roving Pokemon Go players can assemble almost anywhere and without warning. While this consequence has been praised as being a potential boon for local business and incentive for exercise, it has also created masses of unwanted and unauthorized foot traffic on or near private property. Within days of the app’s launch, many citizens took to social media, complaining about the behavior of inconsiderate Pokemon Go players moving without permission across their property.
The Class-Action Lawsuits
As of this writing, three class-action lawsuits have been filed in California federal court by New Jersey, Michigan, and Florida plaintiffs, naming Niantic, The Pokemon Company, and Nintendo as defendants, alleging claims of nuisance against Niantic and claims of unjust enrichment against all three defendants on behalf of classes of property owners whose GPS coordinates (or those of abutting properties) were designated in the game without permission. As each of the three complaints centers on the nuisance claim brought against Niantic, this article will focus on the viability of these claims.
The complaint in the first case, Marder v. Niantic Inc., et al, alleges that in the days following Pokemon Go’s release, plaintiff, a resident of West Orange, New Jersey noticed an increasing number of “strangers… holding up their mobile phones” on his property, “acting as if they were taking pictures.” The complaint also notes that at least five individuals knocked on the plaintiff’s door, informing him that there were Pokemon in his backyard and requesting access through his home. In the second lawsuit, Dodich v. Niantic Inc., et al, plaintiffs claimed that their home in the city of St. Clair Shores, Michigan, as well as an adjacent public park, were havens for Pokemon, Pokestops, and Pokegyms, causing a flood of foot traffic in the park and on their property; players even blocked plaintiffs’ driveway and trampled their landscaping. The Dodich plaintiffs also alleged that Pokemon Go users heckled the couple and peered into their windows and threatened plaintiffs when they asked players to leave their front lawn. The plaintiffs lodged multiple complaints with Niantic, but were met by a generic message directing them to “visit the help center” on Niantic’s website.
The complaint in the most recent case, The Villas of Positano Condominium Association, Inc. v. Niantic Inc. et al., filed in September, describes how hundreds of Pokemon Go users began loitering around the condominiums, shops, and restaurants near the Villas of Positano, an oceanfront condominium complex. Starting in early July, residents began seeing hundreds of Pokemon Go users behaving “like zombies, walking around and bumping into things” and subsequently learned that their property contained a Pokestop. Conditions worsened as the summer progressed, with Pokemon Go users playing music, talking loudly, leaving garbage, and even using the landscaping as bathroom facilities. Like the Dodich plaintiffs, the developer of the Villas sent multiple unanswered requests to remove the Pokestop and was eventually forced to hire off-duty police officers to monitor the property during evening hours.
With respect to the nuisance claims, the three complaints allege that Niantic’s behavior resulted in the creation of a nuisance on the plaintiffs’ properties, specifically, that the game created “an invasion of one’s use and enjoyment of their land, if repeated or of long duration.” The plaintiffs claim that Niantic’s intentional placement of Pokestops and Pokemon gyms on or near private property without authorization foreseeably resulted in, and proximately caused, the behavior of the Pokemon Go players who invaded the plaintiffs’ property and interfered with their enjoyment of their land.
Is Niantic Likely to be Liable for the Creation of a Nuisance?
The claims in these cases are known as “private nuisance” claims, which are frequently made in connection with environmental and toxic tort cases. To succeed, the plaintiffs must show: (i) they have property rights and privileges with respect to the use or enjoyment interfered with; (ii) the interference by the defendant with that use or enjoyment results in significant harm; (iii) the defendant’s conduct is the legal cause of the invasion; and (iv) the interference is either (A) intentional and unreasonable, or (B) unintentional and otherwise negligent, reckless, or the result of ultra-hazardous conduct. If the plaintiffs prevail, they could be entitled to damages and/or abatement of the nuisance. However, in these cases it seems highly questionable whether plaintiffs will succeed in demonstrating that Niantic acted with the required intent, caused the actions of the Pokemon Go users on the plaintiffs’ property, or caused “substantial harm.”
First, while it is clear that Niantic did place Pokemon gyms, Pokestops, and characters throughout the world without much regard for their proximity to private property, it will be difficult to prove that the behavior of Pokemon Go players was legally caused by Niantic. It seems unlikely that a court would consider hundreds of users swarming onto private property in pursuit of videogame characters sufficiently foreseeable to ground a claim for nuisance against the game’s creator.
Second, it will be challenging for the plaintiffs to show that Niantic acted with the necessary state of mind. Intent in this case would be hard to prove, as the plaintiffs would need to show that Niantic’s intention in creating and disseminating the app was for its users to trespass onto private property (rather than simply releasing a fun diversion while making some money doing it). Further, it would be even harder to prove that the defendant’s conduct was “ultra-hazardous” (i.e., actions related to dangerous construction, toxic waste, etc). To prove negligence, the plaintiffs would need to show that Niantic owed landowners a duty of care, and that is far from clear here.
Third, plaintiffs will likely have a difficult time proving that they have suffered a “significant harm,” as case law shows that the harm must be demonstrated with particularity, including specific physical and/or emotional injuries and damage to the property or property value caused by the purported nuisance. Although the Dodich complaint does describe some damage to landscaping and threats of violence, neither complaint indicates that the plaintiffs sustained serious injuries, significant property damage, or reduction in market value to their property rising to the level of a nuisance.
While the plaintiffs may be entitled to bring suit against individual Pokemon Go players, courts are unlikely to curtail Niantic’s business practices of by holding Niantic liable in these suits. Apart from typical tort law considerations, courts are generally reluctant to stymie the development of online businesses and commerce. Given the wild success of the app during its short life, it is unlikely that many courts would adopt so sweeping a decision against Pokemon Go, which would, in turn, limit the development of the burgeoning augmented reality gaming industry generally.
Given the facts, these cases may be dismissed or will more likely settle out of court. However, app developers looking to enter the augmented reality game can learn valuable lessons. Pokemon Go could have benefited from having developed more robust mechanisms for fielding complaints of property owners in advance – a phenomenon that could not have been entirely unanticipated. Indeed, one of the chief complaints of the Dodichs and the Villa of Positano was that there was no one to speak with and no clear form of recourse for addressing their concerns. Until such a time as legislatures intervene to tailor the law to augmented reality, augmented reality app developers would benefit from enunciating clearer no-trespassing policies – perhaps even including requirements for indemnification by users – and creating a more thorough, thoughtful policy for addressing the concerns of distressed property owners. Future developers could also benefit from building systems to quickly and easily remove or relocate particular characters or virtual sites in the event of a complaint.
While it seems unlikely that the plaintiffs will succeed in their actions against the Pokemon contingent, developers should closely monitor the development of these and similar cases in order to avoid similar suits being brought against them in the future, and consult with knowledgeable legal counsel to ensure the most robust protection for their companies, games, and brands.
Filed in: Legal Blog
September 28, 2016