July 29, 2016—Unless you’ve been living under a Geodude this past month, you’ve no doubt been exposed (either willingly or unwillingly) to some part of the current social media/mobile gaming sensation, Pokemon GO. Niantic’s new “catch ’em all” treasure hunting mobile game is lighting up Charmander tails across the globe with approximately 75 million downloads and roughly 25 million daily active users.
Since I’m an attorney that loves video games, and since people seem to like lists, I figured I’d take some time to set out my “Top 5” list of potential legal issues arising in connection with Pokemon GO.
1. When you click “I Agree” before downloading the app, you are likely creating a binding contract containing the Pokemon GO Terms of Service.
If you’re like most people, whenever you download any sort of software program or app, you quickly breeze through the download and install screens, indiscriminately agreeing to whatever is necessary to start the download and install. You should know that by doing this, you are actually agreeing to a legally binding contract. These contracts are called “Click Wrap Agreements,” and they are generally enforceable. Thus far, it is not a valid defense to say “Nobody reads those things.” The only real defense to a properly deployed click wrap agreement is to claim that the terms are unconscionable, and that’s a very difficult row to hoe.
2. You are potentially letting Niantic into your bedroom, literally.
a nonexclusive, perpetual, irrevocable, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute your User Content in connection with operating and providing the Services and Content to you and to other Account holders.
Accordingly, when you’re suffering from insomnia and happen to capture a Clefairy while waiting to capture some Z’s, the image that is generated through your phone’s camera can likely be used by Niantic.
3. It doesn’t matter if Pikachu is hanging out in your neighbor’s backyard. If you go on his or her property without permission, you are trespassing.
Under the law of most states, entry onto private land without the permission of the property owner is both criminal and civil trespass. Most states also allow a defense of justification if the trespass were necessary to avoid some greater harm from occurring. (Think taking shelter from a life threatening storm.) However, the presence of a moderately rare, or even incredibly rare Pokemon has never been, and will likely never be, a valid justification. It’s also important to note that permission to be on property can be conditional and is revocable; I could allow people on my property to bird watch, but I could kick them out if they tried to steal my Dragonite.
4. Although it’s tried to effectively disclaim liability for any conceivable harm suffered by its gamers, Niantic could be liable under certain circumstances.
As with many contracts, the Niantic Terms of Service contain expansive liability waivers intended to insulate it from any and all lawsuits or damages claims arising if someone dies or is dismembered playing the game. However, California law (which governs the Terms of Service) doesn’t generally allow the disclaimer of reckless or willful conduct. Thus, if Niantic had reason to know that gamers were likely to walk off a cliff while playing the game, but still allowed Pokemon to spawn 5 feet past a significant precipice, they could potentially be liable for harm that results.
5. Unless you were paying attention and opted-out of the arbitration agreement found in the Niantic Terms of Service, you have likely waived your right to ever sue Niantic in court or participate in a class action lawsuit.
While I could go on, it’s getting late and I’ve got monsters to catch and demons to slay.