Playing with Real Property Inside Augmented Reality: Pokémon Go, Trespass, and Law's Limitations

Abstract

This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.

The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass — one to augmented space. Pollock and Maitland called trespass the “fertile mother of all actions,” often breeding new or enlarged doctrines across the common law. Perhaps trespass has new breeding to do, providing the genetic material upon which the common law can birth new doctrines that preserve our private property values while adapting to technological advances. We could imagine allocating rights such that owners of physical real property are empowered to exclude others from augmented layering of their property. Only if property owners have “opted in” would any gaming company be permitted to make another’s property an integral part of its augmented reality game. Financial incentives could emerge to make it beneficial for many property owners to choose inclusion of augmented layering. The number of willing properties opting-in might then make the game manageable without the need for layering over the properties of non-consenting owners. Hypothetical or experimental legal innovations aside, the essay concludes with a focus on the evolution of informal norms furthering trespass avoidance. Trespass is an ideal case study of a type of action that already is more often deterred by informal social norms than by law. This the essay concludes by explaining why these informal norms and an appeal to civility may be the best ways to control unwanted augmented-world interference with real property in the real world.

Keywords: augmented reality, Pokemon Go, Pokémon, trespass, property, land use, informal norms, Ellickson, mixed reality, virtual reality, technology, gaming, virtual trespass, trespass to augmented space, air rights