When the Virtual and Real Worlds Collide: Beginning to Address the Clash Between Real Property Rights and Augmented Reality Location-Based Technologies Through a Federal Do-Not-Locate Registry

Author:William T. McClure
Position:J.D. Candidate, University of Iowa College of Law, 2018; B.A., History, University of Evansville, 2014
Pages:331-366
SUMMARY

Following the release of the hugely popular augmented reality location-based game, Pokémon Go, legal questions began to arise about how the game fit with modern property laws. Because the game encourages individuals to visit real-world locations, many property owners near public parks or landmarks saw an increase in foot traffic that sometimes resulted in trespass or damage to their property.... (see full summary)

 
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When the Virtual and Real Worlds
Collide: Beginning to Address the Clash
Between Real Property Rights and
Augmented Reality Location-Based
Technologies Through a Federal
Do-Not-Locate Registry
William T. McClure*
ABSTRACT: Following the release of the hugely popular augmented reality
location-based game, Pokémon Go, legal questions began to arise about how
the game fit with modern property laws. Because the game encourages
individuals to visit real-world locations, many property owners near public
parks or landmarks saw an increase in foot traffic that sometimes resulted in
trespass or damage to their property. This Note examines the legal
ramifications of games or other technologies like Pokémon Go within the
current state of the law and subsequently provides suggestions for the law
moving forward. This Note ultimately advocates for a government-run
registry created through responsive regulation at the federal level. A Do-Not-
Locate Registry would provide a sufficient avenue for protecting property
rights while still considering the inevitable evolution of future augmented
reality and location-based technologies.
I.INTRODUCTION ............................................................................. 332
II.THE EMERGENCE OF AUGMENTED REALITY TECHNOLOGY AND
LOCATION-BASED GAMING ........................................................... 335
A.THE ADVENT OF AUGMENTED REALITY TECHNOLOGIES ............ 335
B.LOCATION-BASED GAMING AND POKÉMON GO .......................... 337
*
J.D. Candidate, University of Iowa College of Law, 2018; B.A., History, University of
Evansville, 2014. I would like to thank my parents, Thomas and Karen McClure, for their
unending love, encouragement, and, of course, financial support. Thanks also to the Iowa Law
Review staff for their work in bettering this piece.
332 IOWA LAW REVIEW [Vol. 103:331
III. AUGMENTED REALITY LOCATION-BASED GAMING
INTERSECTING WITH THE LAW ...................................................... 341
A.NIANTICS TERMS OF SERVICE AND END-USER LICENSE
AGREEMENT ............................................................................ 341
B.TRADEMARK INFRINGEMENT AS A SOLUTION FOR
BUSINESSES ............................................................................. 343
C.PROPERTY CLAIMS ASSERTED THROUGH COMMON LAW ........... 347
1.Conflict of Laws ............................................................. 348
2.Nuisance and Trespass .................................................. 348
3.Unjust Enrichment ....................................................... 351
IV.FITTING A RECTANGULAR CELLPHONE INTO A CIRCULAR
HOLE: HOW TO MOVE FORWARD ................................................. 353
A.THE NECESSITY FOR REGULATION ............................................ 354
1.The Milwaukee County Proposed Ordinance ............. 354
2.Illinois Proposed Legislation: The Location-Based
Video Game Protection Act .......................................... 356
B.THE NEED FOR FEDERAL ACTION .............................................. 357
1.Do-Not-Locate Registry ................................................. 358
2.Creating a Do-Not-Locate Registry .............................. 360
i.Congressional Support ............................................... 360
ii.Constructing the Do-Not-Locate Registry ..................... 360
iii.Implementing and Maintaining a Successful
Do-Not-Locate Registry: Responsive Regulation ........... 361
V.CONCLUSION ................................................................................ 364
I. INTRODUCTION
In July 2016, Jeffrey Marder noticed an unusual number of individuals
lingering outside his West Orange, New Jersey home.1 Phones in hand, some
of these people knocked on his door and requested access to his backyard to
“catch” Pokémon characters.2 The game developers of the massively popular
mobile game, Pokémon Go, had digitally placed these characters on Mr.
Marder’s property.3
Meanwhile, nestled against Lake St. Clair on a quiet cul-de-sac, the
Dodichs enjoyed the municipal park near their Michigan home.4 Normally,
15 to 20 visitors used the park at any given time.5 But in July 2016, several
1. Consolidated Amended Class Action Complaint at 5, 12, In re Pokémon Go Nuisance
Litig., No. 3:16-cv-04300 (N.D. Cal. Nov. 25, 2016) [hereinafter Complaint].
2. Id. at 12.
3. Id.
4. Id. at 14.
5. Id.
2017] WHEN THE VIRTUAL AND REAL WORLDS COLLIDE 333
hundred individuals, mostly staring at their cellphones, overran the area.6
These masses paid little regard to property owners in the neighborhood,
parking in front of driveways, trespassing on lawns, damaging landscaping,
and looking into windows.7 When asking one of these Pokémon Go players to
exit her property, Mrs. Gotts-Dodich received a reply of “shut up B****, or
else.”8
To stop these alleged property violations, the Dodichs first went through
the game creator’s procedures for removing game elements from an area.9 In
reply to their multiple complaints, the Dodichs only received boilerplate
responses from the game creator, Niantic.10 Niantic did not remove Wahby
Park from the game.11 As a result, the Dodichs were left with no other option
than filing suit against the company.12
For years, the 62 residences of the Villas of Positano condominium
complex sat peacefully near the Hollywood Beach Boardwalk.13 These
Floridians are members of The Villas of Positano Condominium Association,
which is responsible for maintaining the facilities and property.14 With the
release of Pokémon Go in July 2016, the Villas residents were overwhelmed
with hundreds of individuals “behaving ‘like zombies, walking around
bumping into things.’”15 Soon after, the Villas residents learned that
“PokéStops” could be found on their private property.16 Additionally, they
discovered that rare Pokémon spawned on the property late at night and into
the early morning.17 As a result, Pokémon Go players allegedly trespassed on
6. Id. In the weeks following, at least five Pokémon Go players were ticketed for
misdemeanor trespass for being present after hours in Wahby Park, the land across from the
Dodichs’ home. Beth Dalbey, Pokémon Go Players Arrested for After-Hours Play at Park, ST. CLAIR
SHORES PATCH (July 18, 2016, 6:49 PM), http://patch.com/michigan/stclairshores/pokm on-
go-players-arrested-after-hours-play-park.
7. Complaint, supra note 1, at 15.
8. Id.
9. Id. at 16. The game developer, Niantic, provides a brief form for anyone seeking to
remove a PokéStop or Gym, two in-game elements that attract users. Request Removal of a PokéStop
or Gym, NIANTIC, https://support.pokemongo.nianticlabs.com/hc/en-us/requests/new?ticket_
form_id=341148 (last visited July 5, 2017) (clicking the dropdown bar under “PokéStop/Gym
issue,” “Private property” is listed as a reason for requesting removal).
10. Complaint, supra note 1, at 16–18.
11. See id. at 19 (ind icating that players continued to congregate at the park, including
organizing Facebook events).
12. Id. The Dodichs and other neighbors also took their grievances to Detroit’s Fox News
affiliate and eventually to St. Clair City Council. Hannah Saunders, Neighbors Fed Up with Pokemon
GO Players in Park Ask City to Act, FOX 2 DETROIT (July 31, 2016, 6:35 PM), http://www.
fox2detroit.com/news/local-news/183850427-story.
13. See Complaint, supra note 1, at 12–13 (showing Figure 3, a map of the Villas location with
game elements laid over).
14. Id. at 5.
15. Id. at 12.
16. Id. PokéStops are in-game locations where players can receive items. See infra note 45.
17. Complaint, supra note 1, at 12.

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