Augmented RealityWhen Pokémon Go, a Nintendo-based augmented reality (AR) gaming application was released, it took both the nation and the world by storm, “with estimated downloads of the digital game topping more than 75 million since the program became available on July 6. Apple has confirmed that it was the most downloaded app ever in its first week of availability.” Jeffrey M. Schlossberg & Jason C. Gavejian, “Next Stop for Pokémon GO: Regulation & Litigation?,” http://www.jacksonlewis.com/publication/next-stop-pok-mon-go-regulation-litigation, Aug. 1, 2016. Indeed, it is quite likely that the farthest thing from the Pokémon Go developers’ minds was the threat of litigation. However, a number of claims have been filed against Niantic Labs [hereinafter “Niantic”], the company that created and released Pokémon Go. See, e.g., Kobs & Philley, PLLC, “Experts Say Pokémon Go Lawsuits Likely,” Mississippi Injury Lawyers Blog, Sep. 2, 2016. The lawsuits filed have ranged from trespassing claims to wrongful death allegations, and litigation involving Pokémon Go is likely to continue. This article assesses the variety of legal claims that are pending and/or probable future lawsuits that concern Pokémon Go and addresses the role that expert witnesses will play in these cases.

Discussion:

The claims against Niantic often tend to fall into three categories. The first set of suits allege that the game encourages trespassing on private property, the second set involves personal injuries that have purportedly resulted from game play, and the third type of cases that have been filed concerns alleged privacy and security breaches.

(1). Trespassing Litigation: Recently, a lawsuit was filed against Niantic that “claims that the game entices players to trespass on other people’s property.”  Janko Roettgers, “Pokémon Go Target of Class Action Lawsuit,” Variety, Aug. 3, 2016. Because the game is based on the concept of encouraging players to travel to different locations in order to “catch” a Pokémon character, some players have apparently lingered outside of private dwellings and even asked residents’ permission to have access to their backyards. See id. This situation is far from isolated, and class certification is currently being sought for a lawsuit that addresses whether the game encourages privacy invasions. See id.  In addition to physical trespass claims, some attorneys anticipate legal arguments involving “virtual trespassing,” where an individual who was not playing the game had their property negatively impacted by a person who was playing. See, e.g, “ Lawsuits with Pokèmon Go and Witnesses That Are Needed to Win,” http://roweandhamilton.com/category/product-liability/, Aug. 10, 2016. Moreover, some attorneys have claimed that along with the traditional trespassing claims, “There is also the tort of nuisance argument. This is an invasion of the reasonable use or enjoyment of personal property, without trespassing. For those who have not encountered physical trespassing, the tort of nuisance argument is another practical approach to litigation.” Id. With respect to trespassing concerns, one attorney asked a series of questions that highlight potential litigation, such as “Does placing a Pokemon character on a private property, without permission, affect the owner’s interest in exclusive possession of the property? Does it create an attractive nuisance? Does owning real property extend property rights to intellectual property elements that are placed on it? Is there liability for placing the characters on private property or in dangerous locations?”  Debra Cassens Weiss, “Pokèmon Go spurs lawyers to stop and consider legal issues,” American Bar Association Journal, Jul. 13, 2016.

In response, Niantic has posted alerts in the game, warning its users not to trespass. No matter what the outcome of the trespass cases, one thing is clear: expert witnesses will play a role in helping to determine many elements of these claims. For example, experts on torts may be called upon to address whether or not Niantic’s alerts are sufficient to absolve it of any responsibility for its users’ trespasses, and issues of negligence may arise. In addition, the residents involved in the trespass cases have alleged damages in their suits. Economic experts will be critical to help assess exactly what type of damages, if any, would be an appropriate remedy, in the event that Niantic was held to be responsible for trespassing.

(2). Personal Injury Cases: The lawsuits that may be of greater concern to society are those that involve personal injury claims because the potential damages are extremely high, with some litigation already pending that involves Pokémon Go players who have died while attempting to catch a particular character. Pokémon Go is a unique game in that it uses a concept called augmented reality (AR), where users are “inside a game while viewing the real outside world.” Kobs & Philley, PLLC, supra. The desire of players to capture characters while traveling to real locations has resulted in a number of accidental injuries and even deaths. See, e.g., Rowe & Hamilton, supra.  In fact, the types of lawsuits that have arisen against Pokémon Go are diverse, startling, and often deadly. As some attorneys explained, “Aside from careless accidents and trespassing, there have also been a number of accidents involving distracted drivers and pedestrians. The game is even being used by criminals to lure their victims into areas where they can be easily robbed. In one case, in Missouri, four armed robbers were using the game to determine when their victims would arrive in a particular isolated location, ideal for their crime.” Id.

Again, Niantic has posted alerts to players to minimize the risk of personal injuries and to remind users to be aware of their surroundings. The question that courts will have to answer will be whether such alerts are sufficient, and to resolve that matter, expert witnesses will be needed.

Many types of experts may be called upon in personal injury litigation involving Pokémon Go, from medical professionals to accident reconstruction experts. Economic experts and experts on the components of particular torts and personal injury duties will be required as well. For instance, “In order to prove a claim against the game for wrongful death or personal injury, it would be necessary to demonstrate that Niantic Labs owed a duty of care to the plaintiff or litigant and that they breached that duty, directly causing the injuries or losses. In a wrongful death claim, it would be necessary to provide evidence that negligence on the part of the company caused the death.” Id. Each of the components in a personal injury claim of this nature frequently requires expert testimony.

(3). Privacy Concerns: One major concern with Pokémon Go, particularly with its earlier versions, is that it “collects users’ precise location information through “cell/mobile tower triangulation, wifi triangulation, and/or GPS.” The Company’s Privacy Policy states Niantic will “store” location information and “some of that location information, along with your … user name, may be shared through the App.” The Privacy Policy does not indicate any limitations on how long Niantic will retain location data or explain how indefinite retention of location data is necessary to the functionality of the Pokémon GO app.” Jeffrey M. Schlossberg & Jason C. Gavejian, supra. In addition, much user data has been collected by Niantic in order for users to play Pokémon Go, and in order to play the game, individuals have had to agree to terms of service that allow Niantic to “read all your email, send email as you, access all your Google Drive documents (including deleting them), access any private photos you may store in Google Photos, and a whole lot more.” Nadia Pflaum, “The security risks of Pokémon Go, explained,” Polifact.com, Jul. 14, 2016.

Moreover, there are two additional privacy concerns. First, the terms of services (TOS) for Pokémon Go give Niantic a “nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license” to “User Content.” The Terms do not define “User Content” or specify whether this includes photos taken through the in-app camera function.”  Jeffrey M. Schlossberg & Jason C. Gavejian, supra. Second, concerns have arisen over whether the TOS allow Niantic to share users’ data with third parties. See, e.g., supra. As two attorneys explain, “The Privacy Policy grants Niantic wide latitude to disclose user data to “third-party service providers,” “third parties,” and “to government or law enforcement officials or private parties as [Niantic], in [its] sole discretion, believe necessary or appropriate.” Niantic also deems user data, including personally identifiable information, to be a “business asset” that it can transfer to a third party in the event the company is sold… .Media, location information and history of children should not be considered a “business asset.” Id.

According to Niantic, however, it never intended to collect as much personal data as it did. Furthermore, it has asserted that it now limits the information it collects from users. New users are purportedly only asked for their email addresses and passwords, while current users can re-download Pokémon Go and then take advantage of the more limited data collection, Niantic argues. As Politifact reports, “Niantic, which developed the game for Nintendo’s Pokémon brand, issued a statement July 11 that they had ‘recently discovered that the Pokémon GO account creation process on iOS erroneously requests full access permission for the user’s Google account.’ They assured that though the mistake allowed them the ability to dive deep into personal data, the app only accesses a user’s ID and email address. ‘No other Google account information is or has been accessed or collected,” the statement read. Niantic said that they were working with Google to fix the permissions issue.’”  Nadia Pflaum, supra.

At least one lawsuit has already been filed against Niantic, based upon the claim that Pokémon Go’s “terms of service and privacy policy are deceptive and unfair and violate the Florida Deceptive and Unfair Trade Practices Act.” Jeffrey M. Schlossberg & Jason C. Gavejian, supra.

In cases involving alleged breaches of privacy, a certain category of expert witnesses may prove themselves indispensable in such litigation. Such experts, who should be consulted by both sides, “are the technical experts, the experts in computerized software and design, virtual gaming, and augmented reality. These are very new fields for expert witnesses and could be the deciding factors in such litigation. Because augmented reality games are new territory, it will be essential to have new technology experts available to educate the jury on the important and relevant technological factors of the case.” Id. Specifically, consulting expert witnesses, such as software engineers, can help companies like Niantic to minimize the risk of privacy breaches and/or lawsuits, demonstrate to a court that they have performed due diligence, and potentially refute any charges that are based on negligence or similar tort-based theories. Prospective plaintiffs will also wish to consult and retain such experts, in order to prove the elements needed for a privacy invasion tort, as well as to establish damages.

In addition to the types of expert witnesses discussed above, a fairly newer class of experts will prove to be extremely useful, both in litigation concerning Pokémon Go, as well as in games with a similar interface. Pokémon Go (and any other games that are developed like it) utilizes augmented reality technology, which makes players see and be in the real world while also interacting with characters on their phone’s screens. As one attorney put it, this is just “the tip of the iceberg on how AR is going to affect our daily lives, it’s a medium just like the Internet is[,] and it’s going to affect daily life I think just as extensively as the Internet has to modern society[,] and the legal issues that come with them are going to be exciting.” Brian Wassom, “The Legal Issues Surrounding Pokémon Go,” Legal Talk Network, Aug. 5, 2016. Expert witnesses who are familiar with both the way augmented reality works, as well as the potential dangers involved and how to mitigate those risks, will be invaluable to parties involved in Pokémon Go controversies, as well as legal matters concerning other games that utilize similar platforms/technology.

Conclusion:

Adjudicating claims against Niantic may not be straightforward, as players agree to assume certain risks when they enter the game’s interface and set up an account. Niantic’s TOS “disclaim liability for property damage, personal injury or death while playing the game, as well as claims based on violation of any other applicable law.” Debra Cassens Weiss, supra.  However, litigators predict that lawsuits of the aforementioned types are only the beginning of many, and it would greatly benefit both sides of the issue to consult and retain expert witnesses in this relatively new set of legal controversies.

 

By: Kat S. Hatziavramidis, Attorney-at-Law