Asked and Answered . . .

Dean Amburn on ‘Pokemon Go’

By Steve Thorpe
Legal News

A Pokémon Go enthusiast slams into a Baltimore police car while playing the game on his phone. In Saudi Arabia, clerics issue a fatwa against Pokémon Go, calling it “un-Islamic.” A Russian official warns against the game, saying, “It smacks of Satanism.” A French citizen working in Indonesia is detained after stumbling onto a military base while searching, he said, for Pokémon figures. And, finally, a man is arrested on an outstanding warrant while stumbling around in his pajamas playing Pokémon Go in front of the police station in Milford, Mich. What hath Nintendo (and Niantic) wrought? Dean Amburn is with the law firm Howard & Howard in Royal Oak, Michigan. He is a licensed patent attorney focusing on intellectual property protection and litigation.

 Thorpe: So, first things first … do you play?

No, but my two sons who are attending Michigan State University gave me an introduction to the wildly popular game as we walked around our neighborhood looking for Pokémon to capture. I don’t quite see the attraction but, as my sons would attest, I am probably clueless about how to have a good time.

Thorpe: The game has created concerns around trespass, robbery and even murder. Not to mention injury of players or bystanders. Are these concerns overblown?

I think not – at least for trespass and injury. Pokémon Go requires players to focus on their smartphone as they track down Pokémon to capture. A distracted player could easily step into a dangerous situation, such as in front of an oncoming car. As my sons and I walked around our neighborhood, we saw Pokémon appear (or as my kids say “spawn”) on our neighbor’s property. This creates an open invitation to trespass. I expect we will see a lot of cases involving a variety of legal issues such as negligence, trespass, nuisance, and premises liability arising out of incidents related to the game. What will be interesting is to see how successful claims are against the Pokémon Go parent company.

Thorpe: The distracted driving problem was big enough already with texting and now this is added. Would a Pokémon Go playing driver still be protected under Michigan’s “no fault” provisions?

No fault provisions should still apply, but drivers will be liable for negligence as a result of accidents caused by their distracted driving. In my opinion, Nintendo should work to prevent players from having an ability to play the game while in a moving vehicle. Chasing Pokémon while on foot is a neat idea that intersects augmented reality with reality in a popular way, particularly with young people. Chasing Pokémon while driving is dangerous.

 Thorpe: Could the game's developer, Niantic, or the co-developer Nintendo face any sort of liability issues from injuries or property damage resulting from playing the game?

I expect that Niantic and Nintendo will be held liable for some injuries and damages resulting from playing the game. It is my understanding that Pokémon Go requires players to “click” through agreements such as waivers of liability before starting to play. These waivers or releases will have little meaning if agreed to by a minor. A distracted minor walking into traffic should have a valid claim. Property owners have legitimate concerns over trespass and nuisance caused by players encroaching on their property and interfering with property enjoyment. Since the game is indirectly, if not directly, causing the trespass or nuisance, Niantic and Nintendo should have liability exposure.

 Thorpe: Some are even claiming that Pokémon Go is being used to break campaign laws. Hillary Clinton’s campaign, for example, has organized a "Pokémon Go" event in Lakewood, Ohio, where people can play the game and register to vote. Your thoughts?

All’s fair in love, war and politics.

Thorpe: The law moves slowly and fads move fast. Do you see the courts or legislature reacting to this phenomenon before it goes the way of other digital dodo birds?

Pokémon Go and copycats will likely be around for a while. By and large our existing laws are adequate to deal with injuries and damages arising from playing the game. Pokémon Go will no doubt evolve to meet the requirements of society and limit the potential for injury, nuisance or trespass. In the meantime, everyone should focus on having enjoyable and safe gaming while respecting the property rights of others.

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