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

331

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.NIANTIC’S 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.