Continuing Pokélegal Education

Avoid looking for Pokémon in jail. 

Following up on our introduction to Pokémon law two weeks ago, the Pokémon experts at Ex Libris Juris have a few more trainer tips about Pokémon Go:

• Pokémon Go creator Niantic Labs has created a webpage to request removal of specific Pokéstops or Gym locations (virtual zones that attract both Pokémon and their would-be captors to real-world coordinates). This Pokémon pest control is intended to alleviate the safety concerns, violation of private property rights, and even disrespect towards the fallen plaguing property owners (mis)fortunate to be adjacent to virtual Pokémon hot spots.

•  Iran has become the first country to ban Pokémon Go after its High Council of Virtual Spaces announced the game represented a potential security threat. Meanwhile, New York has imposed a new condition for registered sex offenders on parole preventing them from playing Pokémon Go, as well as any other Internet games.   

• A New Jersey attorney has filed a federal class action suit against Niantic Inc., Nintendo Co. Ltd., and The Pokémon Company for nuisance and unjust enrichment. The suit alleges that the virtual placement of Pokémon via GPS coordinates corresponding and/or adjacent to private property constitutes an invasion of one’s enjoyment and use of the land. The full complaint may be read online via the Wall Street Journal. The plaintiff is seeking damages as well as enjoining the defendants from continuing to populate private property with Pikachus and the like—relief that, if granted, would effectively put an end to all the Pokémon fun. 

An Introduction to Poké-Law

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A Goldeen splashing around outside the Harris County Law Library

Anyone who’s not living under a rock (or Rock-type Pokémon, if that be the case) has heard plenty in the last few days about Pokémon Go, the augmented reality game breaking download records and causing the worst outbreak of Pokémon fever since the late ‘90s. As a response to the millions of players trying to become Pokémon masters, the Harris County Law Library would like to spotlight a few of the potential legal issues raised by the app:

“I was trying to catch an Eevee” is not a legal defense

If you’re trying to be the very best, “like no one ever was,” make sure you respect property rights. Criminal trespass in Texas occurs when a person enters or remains in or on the property of another, without effective consent and the person (1) had notice the entry was forbidden and (2) received notice to depart but failed to do so. Tex. Penal Code § 30.05 (West 2015). The offense is a misdemeanor. Texas also recognizes civil causes of action for trespass where an unauthorized entry to property results in injury to the property owner’s possessory interests. In cases where the entry was inadvertent, the defendant may still be liable if they failed to exercise a duty of reasonable care (e.g., accidentally driving your car off the road into someone’s yard because you spotted a Pikachu). So heed the warnings of police and don’t look for Pokémon in any place where you don’t have permission to be.

(On this note: While the law library is open to the public for legal research, please don’t use the library for any other purpose. Your local Harris County Public Library branch is a much better Pokémon hunting ground.)

Know Your Rights as a Pokémon Trainer

Like any other app on your phone, players trying to catch ‘em all are subject to the software manufacturer’s Terms of Service. Unfortunately, like most other TOSs, these terms are rarely actually read, and can have serious legal ramifications if a dispute arises. The Pokémon Go TOS contains an “Agreement to Arbitrate” clause that strips users of their rights to participate in class action suits against developer Niantic Labs or to have a trial by jury. If users want to retain these rights, they must email Niantic within 30 days of agreeing to the TOS with an “Arbitration Opt-out Notice.” More information on opting out can be found in this article by The Consumerist.

This is only the beginning of Pokémon Go’s impact on the legal system, as lawyers grapple with the challenge of applying existing laws to new digitally augmented environments. Be safe when out looking for Pokémon, and happy hunting!