Squirtles and Pidgeys and Eevees, Oh My!: Pokémon Go, Augmented Reality Games and Public Property
| Publication year | 2016 |
| Author | By David H. King* |
By David H. King*
The real world can be fairly nerve-wracking for public attorneys and their clients. Public attorneys worry about a variety of potential threats and liabilities, ranging from "slip and falls" on a public sidewalk to law enforcement use-of-force events. But in July 2016, the companies Niantic and Nintendo added a new dimension to the "real world" by introducing an augmented reality game called "Pokémon Go." The game has since become a worldwide phenomenon with over 500 million downloads.1 A variety of unexpected impacts have been associated with the game, some of which may affect public agencies.
This article is intended to be a resource for public attorneys who may face situations arising from playing the game on public property. Therefore, this article will provide a brief description of the game and highlight at least one legislative response to it. In addition, because the game is drawing large crowds of distracted players onto public property, this article will also summarize legal principles associated with public property liability.
Pokémon Go is a location-based augmented reality game developed by San Francisco-based Niantic. The game is downloaded on a user's smartphone and uses the phone's Global Positioning System (GPS) to track the player's movements. In a nutshell, it is a scavenger hunt in the real world for virtual characters called "Pokémon." So far, there are four main components of the game: (1) collecting items such as Poké balls from virtual "PokéStops" that are landmarks in real-world locations, (2) catching Pokémon (i.e., virtual, fictional creatures) who "appear" in the same real-world locations as the player, (3) hatching Pokémon from eggs after the player walks a certain distance, and (4) fighting other Pokémon in virtual "gyms." All four components require users to repeatedly tap or swipe their phones. In addition, all four components require players to interact with the real world; the more public places you visit, the more items you can collect from PokéStops and the more Pokémon you can catch.
In Pokémon Go, virtual characters pop up on a player's screen unexpectedly, which encourages players to play the game in the real world, including on public property.
Pokémon appear everywhere, including on private property, such as restaurants and retail businesses. But Pokémon tend to be concentrated on public property or in public areas - such as parks, beaches, piers, and sidewalks. Thus, certain public property has seen large and unexpected crowds of players. For example, in July, a video posted to YouTube showed a "Vaporeon stampede" in New York's Central Park: seemingly hundreds of players walking through stopped traffic to catch a rare Pokémon character.2 In August, Maryland's politicians debated whether Pokémon Go and other augmented reality games presented a public safety hazard, because they "inspire people to wander places they wouldn't normally go."3 Here in California, the Los Angeles County Fire Department was inundated with phone calls and visitors seeking to catch Pokémon in fire stations.4
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Pokémon pop up on a player's screen unexpectedly and only remain in a small area for a limited amount of time, usually less than 15 minutes. Third-party websites now alert players as to where a particular Pokémon may be found, and for how long that Pokémon will be in that area. Thus, it is not uncommon to see large groups of cell phone-wielding players gather in certain public areas known for particular Pokémon. Thus, the traditional form of playing games has been forever changed: unlike traditional video games, where players gathered in their living rooms or bedrooms, players of Pokémon Go now play along city streets and sidewalks, on public property and in public buildings.
The issues presented with Pokémon Go are not going away any time soon: the company behind Pokémon Go announced that so far, about 10% of the ideas for the game had been implemented.5 Other features, such as adding hundreds of other Pokémon, will likely be rolled out in phases. Dedicated Pokémon Go players who desire to "catch 'em all" will likely be playing the game for years to come.
And it is not just Pokémon Go. The phenomenon of Pokémon Go as an augmented reality game is catching the attention of game makers. It is rumored that Walt Disney Company will be looking at using augmented reality (or "AR") technology for new "Star Wars" toys.6 And there are many other augmented reality games, not to mention virtual reality games.7 As more players use their mobile phones for gaming, and those games draw players into the real world, there will necessarily be impacts caused by players interacting with the public space. The following are a few issues and legal authorities that public attorneys need to know.
The greatest danger that games like Pokémon Go pose to society in general is a distracted driver who plays such a game while operating a vehicle. Pokémon Go is functional while being used in a vehicle, although the game can detect (through GPS) when the phone is moving quickly and then periodically reminds players that Pokémon Go should not be played while driving. The prompt allows players to press an "I'm a Passenger" button, which then allows the player to resume playing the game. Soon after the game was released, a video of a driver crashing into a parked police vehicle in Baltimore made headlines.8 More recently, at least two deaths in Japan have been reported due to Pokémon Go-distracted drivers.9
In California, Vehicle Code...
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