Location Unaware: Developing a Standard of Secondary Liability for Location-aware Technology Developers

• Publication year: 2017
• Citation: Vol. 25 No. 1

Location Unaware: Developing a Standard of Secondary Liability For Location-Aware Technology Developers

Joseph Phillip Sklar
University of Georgia School of Law

LOCATION UNAWARE: DEVELOPING A STANDARD OF SECONDARY LIABILITY FOR LOCATION-AWARE TECHNOLOGY DEVELOPERS

Joseph Phillip Sklar^*

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TABLE OF CONTENTS

I. INTRODUCTION.............................................................................................56

II. BACKGROUND................................................................................................58

A. TECHNOLOGY AND THE LAW..............................................................58
B. LOCATION-AWARE TECHNOLOGY......................................................58
C. SURVEY OF THE LAW OF SECONDARY LIABILITY.............................59
D. THE THREE ROUTES TO SECONDARY COPYRIGHT INFRINGEMENT......................................................................................60
E. ANALYSIS..................................................................................................63

1. Interests and Rationales of Respondeat Superior...................................63
2. Interests and Rationales of Contributory Copyright Infringement...........64
3. Copyright liability Applied.................................................................65

III. CONCLUSION..................................................................................................68

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I. INTRODUCTION

It is July 6, 2016, and the streets of every city in America are filled with people playing the newly-released "Pokémon Go" on their mobile devices.¹ At its peak, Pokémon Go surpassed the daily app usage record set by "Candy Crush Saga" in 2013 with over twenty million daily users.² Pokémon Go, created and developed by Niantic, Inc., is a location-aware application (app) that uses a combination of GPS and Wi-Fi to create a location-based, augmented reality in which users can act as "Pokémon trainers" by "catching" and "battling" their Pokémon, while collecting various items to make the users more successful as trainers.³ To catch and battle Pokémon and collect items, trainers must travel on foot to find where Pokémon "spawn" and battle other trainer's Pokémon at "Pokémon gyms."⁴

The overwhelming majority of "Pokémon Go's" spawn points, PokéStops, and gyms can be utilized by trainers on public property, and do not create issues of trespass.⁵ However, due to "Pokémon Go's" utilization of landmarks first developed for the app "Ingress," "Pokémon Go's" predecessor, some of the landmarks and Pokémon spawn locations are located on private property, creating some cause for concern.⁶

Reports of Pokémon trainers attempting to access "Pokémon Go" locations through trespass to private property has led to questions about potential liability for the game developers as a result.⁷ This question of indirect liability for Niantic as the result of the direct infringement of property rights by "Pokémon Go's" users is an issue that could have far-reaching implications in the development of location-aware technologies. Complaints stemming from use of "Pokémon Go" in sensitive areas like Arlington National Cemetery and the

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National Holocaust Museum, have given the question of secondary liability traction, and may be the impetus for future litigation.⁸

"Pokémon Go" is not the only location-aware app that has drawn the ire of property owners. "Waze", the popular navigation app owned by Google, has come under fire by property owners claiming that the app has caused significant increases in automotive traffic and associated negative effects as a result of the app's innovative route navigation algorithm that re-routes traffic.⁹ This can sometimes result in increases in traffic in areas not accustomed to heavy traffic.¹⁰ One legal implication associated with "Waze's" navigation system is the possibility of secondary liability for nuisance caused by the app's users.¹¹

Location-aware technology used in apps like "Yelp" and "Waze" provide a substantial benefit to society through everything from recommendations for nearby restaurants¹² and reduced daily commutes,¹³ to more efficient international shipping and improved national defense.¹⁴

There are two competing interests involved in addressing what standard of liability should be applied in determining whether producers and owners of developing technology are culpable for the direct infringement of the users of their technologies. The first interest involved is that of the property owner suffering the infringement. There is little question that direct liability can be imposed on individuals playing Pokémon Go when they trespass on private property, but imposing secondary liability on Niantic, Inc. is a different question entirely. Parallels can be drawn to other areas of law, including respondeat superior and secondary copyright infringement. It is important to consider the interest conflicting with the interest of the property owners: the interest in protecting and developing technology.

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II. BACKGROUND

A. TECHNOLOGY AND THE LAW

As new and novel technologies emerge, and present technologies develop and evolve, the law will inevitably be forced to catch up.¹⁵ To expect the law to adequately address every issue raised by technologies not considered at the time of drafting is a foolish endeavor. Laws are created and amended to meet the needs of society, and the needs of society change as society progresses.¹⁶

To illustrate this point, consider two distinct technological developments that substantially altered how society addressed intangible property and real property, respectively: the printing press and the railroad. The printing press allowed books and manuscripts to be mass-produced, significantly reducing the cost and difficulty of spreading information.¹⁷ The mass communication made possible by the printing press played a significant role in the democratization of knowledge and the development of the commercial enterprise of printing.¹⁸ The commercial enterprise of printing led to the first copyright laws.¹⁹ With the development of the steam engine came the spread of the railroad across the United States, and with that came questions regarding how to balance the interest in the spread of railroads against the rights of landowners of property intersected by railroad tracks.²⁰ What developed was a right given to the railroad from the landowner known as a "wayleave," and with it came questions regarding whether the right was proprietary and whether the rail lines were private or public property.²¹ With these examples in mind, this Note next looks to the nature and development of location-aware technology.

B. LOCATION-AWARE TECHNOLOGY

Not only has location-aware technology provided a significant benefit to the public while raising significant legal problems, but other technologies have had this effect as well. A brief history of the development of these technologies needs to be provided before a standard of liability can be determined. Location-aware technology is one facet of the continually developing field of

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global positioning system (GPS) technology.²² In addition to the role GPS plays with location-aware applications, GPS plays a vital role in commerce, travel, and national defense.²³ GPS functions through an interconnected system of satellites orbiting the Earth positioned in such a way that at least four satellites are "visible" to any receiver on Earth at any time.²⁴ Each satellite sends a signal at light-speed to your device in regular intervals, and the length of time it takes for the signal to reach the satellite from your device determines your distance from the satellite.²⁵ When the technology overlays the circles from each satellite, based on the time it takes to communicate, it can pinpoint your location based on the point at which the circles of three satellites intersect.²⁶

Apps like "Yelp", "Waze", and "Pokémon Go" utilize a user's location in relation to other users or other entities, determined through GPS technology, in creating the app experience.²⁷ "Waze" and "Pokémon Go" have drawn the ire of landowners for nuisance and trespass, respectively, as a result of app users either entering onto the land or generally causing a nuisance around the land due to use of the app.²⁸ Suits have been threatened against the developers of "Waze" and "Pokémon Go," presenting a unique question: what standard of liability should apply in claims of secondary infringement of property rights?

In order to determine what standard of liability to apply to secondary infringement of real property, it is helpful to understand how secondary liability is treated in other areas of law, such as tort negligence, patents, and copyright.

C. SURVEY OF THE LAW OF SECONDARY LIABILITY

While this Note will focus primarily on the similarities between contributory copyright infringement and secondary liability for infringement of real property rights, areas of law outside of copyright can prove helpful in providing background. Respondeat superior is a well-known example of liability imposed on a party that did not directly commit the harm.²⁹ Liability for employers under respondeat superior is grounded in the liability imposed on principals for the acts or omissions of their agents within the general principal-agent

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relationship.³⁰ The acts of employees, within the context of their employment, can be attributed to their employer in many situations, because the employer has a right to exercise a degree of control over the employee and derives benefits from the acts of the employee in the course of their employment.³¹

Respondeat superior is commonly supported by some combination of three rationales: (1) "that an innocent person, either the plaintiff or the employer, must bear the loss"; (2) "that the employer had formal right of control over the employee's work"; or (3) "that the employer benefits from the employee's work."³² Principals...