By Tim Kowal
The makers of the app Pokemon Go earned a staggering 500 million downloads in 2016 by making certain landowners’ property part of its popular “pocket monster” game. A collaboration between game giant Nintendo and newcomer Niantic, this boundaries-no-object global scavenger hunt is estimated to have earned just under a billion dollars in revenue in 2016 alone, adding several billions to Nintendo’s market value. Under California’s trespass laws, in particular its trespass-disgorgement statute at Civil Code section 3334, the property owners trampled underfoot in Niantic and Nintendo’s wildly successful treasure hunt are entitled to their cut, and the trespassers could be disgorged of their benefits obtained.
Working from real maps, Pokemon Go’s gamemakers send players to destinations that their algorithms deem to be points of interest, where players can purchase game inventory using their credit cards. But without personal confirmation and consent, an algorithm cannot determine whether it is sending players on private property.
Thus, the gamemakers inevitably paint their electronic X-marks-the-spot on properties like Boon Sheridan’s renovated church, for instance, who wakes up in the morning to find droves of zombified players stumbling about outside: the gamemakers did not bother to learn that the church is now someone’s home before making it a destination for its users to play and transact, to the benefit of Niantic and Nintendo.
Trespass Includes Sending Other People Onto Another Person’s Property
California courts hold persons liable for trespasses caused by their negligence or recklessness. (Gallin v. Poulou (1956) 140 Cal.App.638, 643 [“The fact that he has wrongfully intruded, even though the wrong is one of negligence rather than intention, makes the actor liable for any such harm done to the possessor of land while the actor is thereon. . . . however antecedently improbable.”]; Coley v. Hecker (1928) 206 Cal. 22 [“[T]respasses may be committed by consequential and indirect injuries . . . .”].)
While trespass requires that the act be intentional, it does not require a wrongful intent. Niantec and Nintendo act intentionally when they send Pokemon users looking for “pocket monsters.” They might be merely negligent or reckless when those users wind up on private property, but so long as it is foreseeable, that is enough to establish trespass.
Victims Are Entitled to the Trespasser’s Profits
The really interesting part: California’s trespass laws also require trespassers to pay their victims the “benefits obtained” by the trespass. (Civ. Code, § 3334.) Enacted in response to oil companies dumping waste and paying only the nominal rental value of their victims’ land, Civil Code section 3334 requires trespassers to disgorge the profits from their trespass. In Niantec’s case, whose Pokemon Go app earns millions of dollars a day in revenues, the little monsters make for big trespass.
Big Apps, Big Trespass
Pokemon Go is the latest in the genre of big games. They’re called big games because they use the world as their game board. They’re also called pervasive games, a term that gets closer to the mark. When app-makers send throngs of zombified users under your bedroom window like they did Boon Sheridan’s, another word ending in -vasive might well come to mind, likely preceded by some rather pithier action verbs.
A creation of wiz-bang marketing firms, pervasive apps, and their invasive effects, are likely going to become more familiar. Predecessors to Pokemon Go have been used to hock telco services, video games, and even Nine Inch Nails records. Pokemon’s sales pitched drastically by the end of 2016, but a model that can do first-month sales of a quarter-billion dollars is not one that will ride into the sunset anytime soon.
Apps Designed to Trespass
Niantic sells a product that requires a large playing area. The whole civilized world, in fact – or at least, as much of it as it can stuff into its GPS database.
The game’s scope is massive, but its objective is simple: walk around your neighborhood, on your neighbor’s lawn, into your local coffee shop or church or art gallery or national cemetery or war monument or Holocaust museum or demilitarized zone – anywhere, really – and find cartoon monsters that pop up on your phone. The game also has its users look for stores to buy products, called Pokestops, and arenas to engage the cartoon monsters in combat, called Pokegyms. These, too, are likely to be found in private property that the maker’s maps and algorithms have identified as points of interest.
The draw of Pokemon Go, and of big apps generally, is their lack of limits. One critic who positively reviewed Pokemon Go raved about “the very personal nature of catching Pokémon in your own neighborhood made me smile more than any game has for years.”
Whenever the app maker knowingly encourages its users to enter private property, it is liable in trespass. True, the app maker likely does not even know the property is privately owned, or even that the trespass has occurred. How could it? The playing area covers most urban areas of the planet, and at its height, almost half a billion users.
But trespass does not require knowledge of the plaintiff’s ownership, or knowledge of the entry. “An entry may also be accomplished by setting in motion an agency which, when put in operation, extends its energy to the plaintiff’s premises to its material injury.” (Elton v. Anheuser-Busch Beverage Group, Inc. (1996) 50 Cal.App.4th 1301.) Thus, even a hacker’s electronic signals have been held to be a trespass. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, fn. 6.). “Trespass may be ‘“by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person . . . .”’” (Martin Marietta Corp. v. Insurance Co. of N.A. (1995) 40 Cal.App.4th 1113, 1132.)
Niantic and Nintendo don’t mean to send players to your property, of course, but because of the vast scope of its project, it can’t help not sending players to your property eventually. When it does, it trespasses. And when it trespasses, it could be liable to disgorge its massive profits.
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Timothy M. Kowal is a civil litigator specializing in trespass, land use, and business litigation. You can contact Tim at (714) 641-1232 or tkowal@tvalaw.com.
(View more articles by Tim Kowal here.)