Kochan on Pokemon Go, Trespass, and Law’s Limitations

Associate Dean for Research & Faculty Development and Professor of Law, Chapman University Dale E. Fowler School of Law

Associate Dean Donald J. Kochan at Chapman University Fowler School of Law has a new article up titled Playing with Real Property Inside Augmented Reality: Pokemon Go, Trespass, and Law’s Limitations. The article is available at SSRN. A taste:

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.

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 reality interference with property owners in the real, physical world.

Read the whole thing.

A few thoughts after reading the paper and considering the liability of Niantec, Pokemon Go’s maker, as discussed in my previous post on the subject here:

In Niantec’s favor, “augmented property” probably has little or no value until it is assembled, and it could be regarded a “waste” to disallow or prohibitively disincentivize assembly in a form such as Pokemon Go has created. On the other hand, the inability to exclude or choose among competitors for that augmented property could lead to a tragedy of the commons. Say, for example, Starbucks wants to lend its cafes to the use of Pokemon Go but not to its competitor, whose users are anathema to one another, or whose gameplay conflicts. The value of Starbucks’ augmented property could be devalued or eliminated without the right to exclude.

To regulate among uses of its augmented space, Starbucks could build Faraday cages within its stores – i.e., to block wireless signals – and thus permit wireless access only through its private wifi, which could allow only the augmented-space services it likes.

If we claim “augmented property” as a commons, then, we likely still must have a way to regulate that commons. It is not immediately clear there is good reason to part ways with the private-property rubric until we understand the value, uses, and needs involved. Which, in our federal system, as likely as not means it will soon be subject to a National Pokemon Act.