When Pokémon GO(es) Too Far: Augmented Reality and Tort Law

Abstract

No one could have anticipated the drastic consequences of Pokémon GO, which quickly became the most popular smartphone game in U.S. history with more than $2 billion in global revenue from July 2016 to December 2018.

In this augmented-reality game, players are required to travel with their phones to real-life locations in order to collect virtual Pokémon creatures and win rewards. The game, however, did not take precautions to avoid sending players to private property. As a result, homeowners nationwide began to suffer property damage, belligerence, and harassment from game players trespassing on their properties at all hours of the day and night.

The resulting class-action lawsuit against Pokémon GO asked whether a game owner can be held liable for engineering a game in a manner encouraging other people to trespass. A related question, one not addressed in the class-action suit, is whether property owners could have premises liability for visitors who are injured while playing an augmented-reality game like Pokémon — or whether the game might shoulder at least some of the liability.

The class-action trespass lawsuit survived motions to dismiss, meaning that the judge thought the plaintiffs' claims were facially viable, but the parties' settlement (reached after this article was originally published) prevented a verdict on the merits. This article explores how the augmented-reality genre may require revisions to existing laws governing trespass and premises liability. Ultimately, game makers should not be able to exploit loopholes in the law by using virtual platforms to create very real harms.

Keywords: Pokemon, Pokemon Go, Augmented Reality, Virtual Reality, Virtual Trespass, Niantic, Pokemon Go Nuisance Litigation

JEL Classification: K11, K13, K20