Property owners suing Niantic, the developer of augmented reality gaming sensation Pokémon Go, for trespass and nuisance, have likely settled after years of litigation. They submitted a proposed settlement to the US District Court for the Northern District of California. The class action, a consolidation of numerous claims filed against Niantic in 2016, alleged that the developer induced Pokémon Go gamers to trespass onto homeowners’ properties. The class action settlement would force Niantic to implement stricter internal policies regarding the virtual placement of game characters on private property.
The concept of Pokémon Go is simple—players are able to capture, train, and battle virtual creatures that are “mapped” onto real-world locations, enabling every 90’s kid to live out their dream as a real-life Pokémon trainer. But by fusing the virtual and physical worlds, the game’s designer, Niantic, has raised a slew of legal issues surrounding privacy, intellectual property, and, in this case, trespass.
In one claim, a homeowner, Boon Sheridan, discovered that his house had been designated a Pokémon “gym,” which serves as a landmark where Pokémon players can gather to battle head-to-head with their rivals. As a result, activity around his quiet suburban home spiked exponentially, with Pokémon trainers battling outside his door at all hours of the day and night. One player proudly asserted his status as the gym’s owner, despite the fact that the virtual haunt is located directly on Sheridan’s property.
This raises several unresolved issues surrounding property ownership and trespass. Who owns a virtual space? Is it owned by the game designer, the player who establishes in-game dominion, or the owner of the physical location onto which the virtual space has been mapped? Who should be held responsible for the numerous trespasses that have been committed since the launch of Pokémon Go? Though Niantic has spurred players to break the law in pursuit of Pikachu, the design team itself has never stepped foot onto private property.
While homeowners disparage Pokémon Go for the increased foot traffic it has created, stores have jumped at the opportunity to boost their number of visitors, and brands like Starbucks and McDonalds have partnered with Niantic to get their locations tagged as Poké gyms. Pokémon Go has since driven over 500 million visitors to sponsored locations, with companies paying up to 50 cents per visitor attracted. As the financial stakes surrounding virtual spaces continue to grow, notions of property ownership within the AR world become increasingly significant, and perhaps one day will be as hotly disputed as the traditional property rights at issue today.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).