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Gotta Catch ‘Em All! The Physical Entry Requirement in In Re Pokémon Go Nuisance Litigation

Gotta Catch ‘Em All! The Physical Entry Requirement in In Re Pokémon Go Nuisance Litigation

Madison Pevey

Released in the summer of 2016, Pokémon Go quickly became one of the most downloaded mobile games.[1] Niantic, The Pokémon Company, produced and developed the mobile game.[2] In the game’s first week, the app was downloaded more than 30 million times.[3] In 19 days, the app was downloaded more than 50 million times, setting records for the mobile-gaming industry.[4] In app purchases reached $35 million in three weeks.[5]

One thing that sets Pokémon Go apart from other mobile games is its Augmented Reality technology. Augmented Reality, or AR, uses technology to produce an experience that includes more than the standard five senses.[6] AR technology involves interfacing the real world with the digital world to create an augmented experience.[7] While AR might sound futuristic, it is already heavily incorporated into our daily lives.[8] One familiar example of AR technology is the yellow line of scrimmage or the first-down line in televised football games.[9]

The goal of AR “is to make our everyday world inhabited by digital objects. . .  to move the intertwinement between digital elements and users’ everyday lives to a completely different level.”[10] Pokémon Go creates this augmented experience by layering a digital game board over the real world.[11] In the game, users take on the role of Trainers and hunt for digital monsters called Pokémon.[12] Trainers can catch Pokémon by encountering them in the real world, competing in a raid with other Trainers at a digital gym, or by trading with their friends.[13]

This intertwinement with real property is the subject of recent litigation involving Niantic and Pokémon Go.[14] In a consolidated class action,[15] real property owners allege that Niantic’s augmented digital interface is causing them real-world harm.[16] This Note will follow the Pokémon Go litigation and argue that the game developer should not be held liable for the actions of the end users based on the physical element of trespass at common law and their binding user agreement. 

Part I. A. of this Note will give a brief history of the Pokémon franchise leading up to the development of the Pokémon Go mobile app. Part I. B. will give information on AR technology, Niantic, and the predecessors to the Pokémon Go mobile app. In Part II, this Note will introduce the Plaintiffs’ claims of trespass from the recent lawsuit In re: Pokémon GO Nuisance Litigation. Next, it will present Niantic’s Terms of Service and examine their enforceability in the Ninth Circuit. This section will introduce inducement to trespass and virtual trespass theories as advanced by the Plaintiffs.

Part II. B. will introduce Niantic’s new crowd-source approach Poké Stops and analyze whether the approach will successfully protect Niantic from future litigation based on virtual trespass theory. Although recently settled, Niantic began taking steps during the litigation that suggest an attempt to moot the lawsuit. Part II. D. will discuss mootness and whether the changes made by Niantic would have impacted the lawsuit or future lawsuits. The Note will conclude by arguing that Niantic should not be held liable based on its user agreement and discuss how the court should rule in the event of another lawsuit.

[1]Jeff Grubb, Pokemon Go is at 75 Million Downloads as it Sets More Records, Venture Beat, (July 25, 2016, 4:45 PM), https://venturebeat.com/2016/07/25/pokemon-go-is-at-75-million-downloads-as-it-sets-more-records/.

[2]Id.

[3]Answer to Second Consolidated Amended Class Action Complaint, at 4, In re Pokémon Go Nuisance Litigation, No. 3:16-cv-04300-JD (N.D. Cal., April 24, 2017) [hereinafter Answer].

[4]Id.

[5]Grubb, supra note 1.

[6]Brian D. Wassom, Augmented Reality: Law, Privacy, and Ethics, 19 (Chris Katsaropoulos, 2015).

[7]Id.at 19.

[8]Id.at 6.

[9]Id.at 7–8.

[10]Nicola Liberati, Phenomenology, Pokémon Go, and Other Augmented Reality Games, 41 Hum. Stud. 211, 211 (2017).

[11]Pokémon Go, Niantic, iOS, v. 0.127.2 (2016) [hereinafter The Game].

[12]Id.

[13]Id.

[14]See In re Pokémon Go Nuisance Litigation, No. 3:16-cv-04300 JD, 2017 WL 7790908 (N.D. Cal. filed July 29, 2016) (litigating the intersection of virtual content and physical property).

[15]Consolidation and Case Management Order, at 1, In re Pokémon Go Nuisance Litigation, No. 3:16-cv-04300 JD (N.D. Cal., Aug. 28, 2017).

[16]Second Consolidated Amended Class Action Complaint, passim, In re Pokémon Go Nuisance Litigation, No. 3:16-cv-04300 JD (N.D. Cal. Sept. 16, 2016) [hereinafter Second Amended Complaint].

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