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Friday, August 19, 2016

"Virtual Property," "Virtual Trespass," and Nuisance Law: A Pokémon Go Story

This post is a spinoff from some of my recent posts on Pokémon Go litigation which you can find here and here. Pokémon Go's popularity and related litigation has prompted commentators to discuss notions of "virtual property," and related questions of who owns virtual property and whether it can be invaded in instances of "virtual trespass." I think that "virtual property" and "virtual trespass" are poor choices of wording that lead to confused discussions and the breakdown of legal analysis.

My suggestion: stop using these terms. Rather than "virtual property," instead say, "right to enjoyment of property." Rather than "virtual trespass," instead say, "interference with the right to enjoyment of property." In short, nuisance law provides an effective avenue for coherent legal treatment and analysis of Pokémon Go and other augmented reality games. Notions of trespass lead to confusion and unanswerable questions.

For the story that prompted these legal musings, CTV News reports:
A French mayor has denounced the "anarchical settlement" of "Pokemon Go" characters on the "territory" of his eastern village and has ordered the game's creator to remove the virtual creatures.

Bressolles Mayor Fabrice Beauvois said Tuesday that he has mailed a decree to California-based Niantic Inc. and The Pokemon Company to make sure they stop setting up Pokemons [sic] in the village of about 800 inhabitants northeast of Lyon.

In his decree, the mayor says the search for Pokemons [sic] puts pedestrians and drivers at risk because players get inattentive while watching their smartphones and that it may also result in groups of people forming at night
You can find additional reporting on the decree here and here.

The article goes on to note that while Niantic has not responded regarding the mayor's request, Niantic has pointed out that people can request that the company remove a location's designation as a Gym or PokéStop. This solution, however, would not address that mayor's concern, who is requesting that the "territory" of his village be removed from the App's augmented reality altogether.

Here's the logic the mayor used:

"When a cafe or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor. The rule applies to all people wishing to set up an activity or occupy a space on a public property. So it applies to Niantic as well, even though their settlement is virtual," Beauvois said.

The argument illustrates an interesting question: does Pokémon Go's placement of interactive locations and randomly-generated digital creatures onto a map constitute trespass or interference with property rights? Keith Lee confronts this question in this excellent article.

One of the particularly interesting questions Lee raises goes as follows:

You might argue that [Augmented Reality] object[s] aren’t real. That they don’t constitute a physical invasion of property. But:
  • To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff’s possessory interest; and (4) substantial damage to the property. Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 2 A.L.R.4th 1042 (Ala. 1979).
Does your exclusive rights to property extend to cyberspace? Can someone place lights, sounds, objects, that are only viewable with technology assistance, on your property without your permission?

As Lee's final question indicates, the notion of "virtual space," when viewed through the lens of augmented reality games like Pokémon Go, leads to mind-bending questions over the definition and extent of "trespass." The interactive nature of augmented reality certainly lends an intuitive push towards accepting the trespass analogy. But taking a step back, putting down the phone, and taking a broader look at how the augmented reality system works leads to a breakdown in applying the logic of trespass. People's houses are not being overrun by small creatures, Pokéballs are not flying through windows -- people's physical property is not being invaded. Without the invasion, the trespass analogy breaks down.

Property owners, however, are not without a remedy. The law of property is not limited to physical property and its invasion. The law of nuisance extends to one's property rights, and interference with those rights. It is through nuisance, not trespass, that property owners may successfully argue that Niantic is causing them harm.

A series of illustrations may help clarify the argument. I'll start with an example involving one of the first forms of augmented reality technology: maps.

Paul is a property owner. He owns a house at the intersection of A street and B street in the town of Iowa City. Michelle, a mapmaker for a prominent mapmaking company, drafts a map of Iowa City for inclusion in the company's bestselling atlas (please, accept for the sake of the hypothetical that people buy physical maps). Michelle, as a prank, labels the corner of A and B Street in Iowa City as "You have got to see this ridiculously ugly house." The label overlaps the plot of land where Paul's house is located. The company fails to catch Michelle's label, and upon sale of the maps, hundreds of people descend on the intersection of A and B street to gawk at Paul's house. They block Paul's driveway and laugh at Paul. Paul tries to sell his home, but the label affixed to his land has tanked the value of the property. Paul feels wronged.

When Michelle labeled Paul's house as "ridiculously ugly," there was no invasion of Paul's land, or of Paul's interest in exclusive possession of the land. Michelle simply wrote an evaluative opinion of the appearance of a house onto a map, and the label happened to overlap with where Paul's house was located in the real world. While the label on the map had real world consequences, the label itself did not constitute a trespass.

Paul, however, has an argument that Michelle's act of labeling his house as ridiculously ugly constitutes a nuisance -- or, in legal terms -- an unreasonable interference with Paul's interest in the private use and enjoyment of his land.

Normally, nuisance law deals with nasty neighbors of one sort or another. It might be a neighbor with ugly cars or it might be a nearby company emitting nasty smells. But the interfering party does not need to be a neighbor. The Restatement (Second) of Torts section 821D defines Nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land," and the concept of one's "private use and enjoyment" is to be interpreted broadly. Prah v. Maretti, 321 N.W.2d 182, 231-232 (Wis. 1982).

Paul appears to have a cause of action for nuisance against Michelle. Michelle's labeling of his house as "ridiculously ugly," coupled with the label's request that people go and see it, are intentional actions that would likely interfere with Paul's enjoyment of his property. Throngs of house-haters aside, it is no surprise that such a label ended up tanking Paul's property value.

Let's take this hypothetical one step closer to Pokémon Go with this fascinating story from Fusion about a piece of property owned by Joyce Taylor that is plagued by constant police investigations, break ins, and threats:

For the last decade, Taylor and her renters have been visited by all kinds of mysterious trouble. They’ve been accused of being identity thieves, spammers, scammers and fraudsters. They’ve gotten visited by FBI agents, federal marshals, IRS collectors, ambulances searching for suicidal veterans, and police officers searching for runaway children. They’ve found people scrounging around in their barn. The renters have been doxxed, their names and addresses posted on the internet by vigilantes. Once, someone left a broken toilet in the driveway as a strange, indefinite threat.

How did Taylor's property become subject to such chaos? From the article:
As any geography nerd knows, the precise center of the United States is in northern Kansas, near the Nebraska border. Technically, the latitudinal and longitudinal coordinates of the center spot are 39°50′N 98°35′W. In digital maps, that number is an ugly one: 39.8333333,-98.585522. So back in 2002, when MaxMind was first choosing the default point on its digital map for the center of the U.S., it decided to clean up the measurements and go with a simpler, nearby latitude and longitude: 38°N 97°W or 38.0000,-97.0000. 
As a result, for the last 14 years, every time MaxMind’s database has been queried about the location of an IP address in the United States it can’t identify, it has spit out the default location of a spot two hours away from the geographic center of the country. This happens a lot: 5,000 companies rely on MaxMind’s IP mapping information, and in all, there are now over 600 million IP addresses associated with that default coordinate. If any of those IP addresses are used by a scammer, or a computer thief, or a suicidal person contacting a help line, MaxMind’s database places them at the same spot: 38.0000,-97.0000.
Which happens to be in the front yard of Joyce Taylor’s house.
MaxMind's labeling of Taylor's property as the default location for unidentifiable IP addresses led to substantial interference with Taylor's enjoyment of the property. But the labeling itself cannot be cleanly labeled as an "invasion" of the property itself. Rather, it is a less-tangible invasion of the similarly less-tangible right to enjoyment of property.

As an aside, this is not to say that labeling property in a certain manner cannot give rise to instances of trespass. Taylor certainly experienced instances of physical invasions of her property when people physically went to the property as a result of MaxMind's coordinates. And causing somebody or something to go onto somebody's private property constitutes an act of trespass. But the act of associating Taylor's property with the default location for unidentifiable IP addresses alone does not appear to constitute the invasion of property that gives rise to a trespass.

Applying all of this to Pokémon Go shows that allegations of interference with property by the company itself should be dealt with in terms of nuisance rather than trespass. When Niantic designates a set of GPS coordinates as a Gym or PokéStop it is not invading that property, but its action may have the direct and (as Plaintiffs may argue) foreseeable consequence of interfering with the enjoyment of the land where those coordinates are located.

An augmented reality app that functions on a level related to, yet beyond, physical property should be dealt with using concepts of interests, enjoyment, and rights that are similarly related to the property. Nuisance is the appropriate legal framework for addressing instances where augmented reality apps are alleged to interfere with people's property.

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