Law Times

Page 10 July 25, 2016 • law Times www.lawtimesnews.com Virtual trespassing result of Pokemon Go? BY YAMRI TADDESE Law Times T he wildly popular game Pokemon Go and the hordes of players who walk to various destina- tions to unlock the game's char- acters on their phones are raising a legal question around virtual trespassing, a University of Brit- ish Columbia professor says. Nintendo, the company be- hind the augmented-reality game, saw its stock prices soar as millions took to the street to collect and train Pokemon char- acters like Pikachu from various city locations, including parks and other landmarks. While some businesses cap- italized on the hype by posting signs about the presence of the virtual critters on their premis- es, not everyone took kindly to a sudden f lux of people who had come to their doorsteps chas- ing Pokemon. Days after the all-consuming game launched, the Holocaust Museum in D.C. told the Washington Post about its displeasure with folks coming into the museum to play Poke- mon Go. In Toronto, Sick Kids Hospital also tactfully asked gamers to stay away. Jon Festinger, who teaches video game law at UBC's Centre for Digital Media, says the game raises a question about what control, if any, property owners have over their virtual space. "A virtual item is being placed without the knowledge and the permission of the owner of the physical space," says Festinger. "This virtual item exists, in a sense, on the physical premises because people are coming to the physical premises for this virtual item; they can't fish it from a distance." "Do you have the virtual right to your premises?" Festinger asks. When videogame compan- ies recreate a real sports arena or baseball park for use in their games, they ask for permission to do that, says Festinger, who was formerly general counsel for the Vancouver Canucks and GM Place. "That's not the same as plant- ing something virtual in an- other dimension, if you will, in a real space," he says. Noel Courage, partner at Bereskin & Parr LLP, says there are also privacy concerns around the data the app collects and how that data may be cause for pri- vacy concerns. Companies like Nintendo can collect a massive folio of information on people's behaviour based on their location and places they frequent, he says. Courage adds there's evidence the game is already changing people's behaviour as they, for ex- ample, prefer restaurants where a rare character of the game can be unlocked nearby. The data is extensive and "a goldmine from a commercial point of view," Courage says. "They don't really say much about what use they're going to make of information you pro- vide, which I thought was inter- esting," he adds. But privacy and virtual tres- passing aren't the only legal is- sues to come out of the Pokemon Go mania. On a rather darker side of the gaming mania, news reports out of Missouri said the Pokemon Go app was used to lure players into a place for armed robbery. Pokemon Go's terms of ser- vice addresses safety issues, saying players must consent to assuming their own risk. "During game play, please be aware of your surroundings and play safely," the term of service reads. "You agree that your use of the app and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any in- juries that you may incur while using the services." By playing the game, users also agree not to violate any applicable laws and regulations, including trespass laws. The app says children under the age of 12 are required to have their parents' consent to log on, but it's hard to say how a court may interpret that disclaimer, Festinger says. "What is a court going to make of that? Do you really think every kid who . . . clicks 'I agree' to the contract goes to their par- ents and says, 'Hey, Mom and Dad, is it OK if I click on this?" Festinger asks. "The question is the extent to which the courts might want to look behind those contracts, and that's a real ques- tion that has not been litigated in a videogame context yet." The makers behind Pokemon Go are likely expecting law- suits over such safety questions, Courage says, adding it's likely something they're prepared to fend off. "It's another cost of doing business," he says. To be sure, Festinger says Pokemon Go isn't the first vid- eogame that has blended the physical world with a virtual one. Although it was a "spectacular failure," Majestic, launched in 2001, interacted with players' real lives by sending them clues via e-mail, fax, and instant messa- ging, he says. Two years ago, an- other augmented-reality game, Ingress, also required players to physically travel to landmarks to collect "portals." "Pokemon didn't show up out of nowhere," Festinger says. "It's Ingress in many ways." LT FOCUS A virtual item is being placed without the knowledge and the permission of the owner of the physical space. Jon Festinger The game Pokemon Go is raising ques- tions around virtual trespassing, and what control property owners have over their virtual space. © 2016 Thomson Reuters Canada Limited 00238CY-70265-CE Drafting Assistant – Transactional also: • Flags discrepancies in defined terms, numbering, punctuation, and non- conforming phrases • Hyperlinks those flagged issues, allowing you to navigate to the exact location within your documents • Links key concepts such as cited sources and defined terms • Scans your document and quickly connects to other documents referenced in the transaction With Drafting Assistant – Transactional, you'll expedite the document review process and spend more time tackling the substantive, client-specific issues that matter most. 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