Virtual ‘Pokemon’ game has real world legal consequences

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Since launching in the US in early July, Pokemon Go has taken the gaming world—and the real world—by storm, unleashing hordes of players wandering about the landscape, viewing their surroundings through cell phones while attempting to track down a Flareon or a Drowzee.

The sheer number of participants, however, and the determination to locate their imaginary quarry is increasingly leading to some not-so-imaginary problems, from jaywalking to trespassing and beyond. Already, a teen too lost in the game to notice her surroundings walked onto a highway and was struck by a vehicle, while a couple other players accidentally fell off a cliff; others are having their property overrun by players on the hunt.

Is that a Pokemon? Nope, it’s a corpse

As the number of players continues to multiply, so too will the possible legal issues which accompany an innovative and immersive game that blurs into material space. “Pokemon Go may be a different way of playing an online game, mixing fantasy and reality, but people need to keep the rules of the real world in mind,” said Josh King, Avvo’s general counsel. “The rules of physics and trespassing still fully apply.”

The exploratory nature of the game, in which players are encouraged to investigate different locations and uncover Pokemon “hiding” in unexpected places—a key component of its appeal—also potentially leads to some unpleasant discoveries. Several reports have emerged of players unwittingly finding dead bodies as they roam through isolated areas, and armed robbers have even used the game to ensnare victims.

“If you run into the middle of a busy street to catch a rare Pokemon—there may be physical consequences,” says King. “Same goes for entering into unfamiliar (and potentially unsafe) areas, interacting with unknown people in public, and trespassing onto private property to get items in the game. In all such things, augmented reality has the potential to get very real.”

Virtual game, real legal questions

In addition to more established would-be breaches of legality, there are a few rather unusual, possibly even brand new questions of law that the nature of the game brings into play (so to speak), like:

  • Pokemon nuisances: If the makers of Pokemon Go have installed a Pokemon item on your property and an overzealous player pursues it there, is Pokemon Go guilty of trespassing, or at least creating a nuisance? “Most likely no, as trespass requires a real-world invasion of property rights and owners can resort to self-help if they think it’s a nuisance by opting out,” says King. “But expect to see this tested in court, as the game can create trespass ‘opportunities’ and can also bring potentially large crowds of people into close proximity with private property – potentially sparking confrontations or claims of nuisance – than would otherwise happen.”
  • Negligence, by way of being too good: Can Nintendo get in trouble for making a game that’s so immersive, people walk into traffic while playing it? Probably not, according to King, but the possibility is still there. “Traditionally, people are responsible for managing their own behavior,” says King, “and the factors that distract them are not legally responsible. But again, don’t be surprised to see legal challenges on this front.”
  • Virtual trespassing, or: Get off my lawn, Pokemon! “We’ve already seen some venues – like the Holocaust Museum and some restaurants – call for patrons to not play the game on the premises,” says King. So does that mean that venues can sue Nintendo for populating their private property with virtual characters? Again, probably not, but nobody really seems to know for sure. “There’s a first amendment right to associate intangible concepts (like words and ideas, but also Pokestops and Pokemon gyms) with tangible people, places, and things; it’s hard to see how a property owner could overcome this,” says King. As previously mentioned, businesses do have the ability to “opt out,” though one might wonder if some places (cemeteries, etc) might not be so patient about being included in the first place without their consent.

Pitfalls for players as well

So Nintendo’s got some interesting legal considerations to think about, but what about the players?

Clearly, some of the same would-be problems—like trespassing, for instance—are of concern for people playing the game. But there are other possible issues as well. The Terms and Conditions are a good place to start for those wanting to enjoy themselves while being aware and educated.

“As of now, an arbitration notice states that Pokemon Go users automatically agree to waive their rights to any future trial by jury or class action lawsuit unless they opt out within 30 days of starting to play,” says King. Sounds like Nintendo may have seen a few snags coming.

Also, a hot tactic in the gaming community is to buy and sell player accounts; essentially, the seller takes the time and effort to build a player profile, boosting the level of the account and gaining access to tools and perks (and Pokemon), then selling to someone who’d rather not put in the work. It’s especially tempting with Pokemon Go, as the popularity of the game has become high enough already that, in some social groups, failing to reach a respectable level in the virtual game creates actual status anxiety. But this is expressly forbidden—and legally actionable—by way of the Terms and Conditions.

So enjoy yourselves out there as you go collecting Pokemon, and if you’re a property owner who doesn’t approve of such shenanigans, don’t feel bad about taking action. “They should exercise their right to legally keep trespassers off their property,” says King, “by involving local law enforcement or retaining a lawyer.” Lastly, if you’ve got a question regarding the legality of anything Pokemon-related, make use of Avvo’s Q&A section; a number of Poke-questions have already been asked.

Image courtesy of Matthew Corley /