Since it debuted in the U.S. a couple weeks ago, Pokémon Go has become a nationwide phenomenon. If you’re like I was, you may need a primer in order to understand what the hoopla is about. The smartphone game was launched by Nintendo and The Pokémon Company. It involves capturing and “training” phantasmagorical creatures called Pokémon, who feature in a longtime videogame franchise. And yes, there’s an ethics issue for you to think about.
Here’s what USA Today says about our latest digital obsession:
“What makes the game special is its use of augmented reality, where Pokémon will appear [on your phone] as if they’ve been spotted in the real world. The game presents a map powered by GPS, using real-world locations to spot Pokémon and collect items. When you find one, the game opens up your smartphone’s camera, giving you a view of Pokémon in the real world. Once you spot them, you flick a Poke Ball toward the creature to capture it.”
So, when you see people — and they’re all ages — walking around gazing down at their phone these days, they may well be engrossed in playing the game.
Pokémon can be found all over the place — homes, stores, parks, cemeteries, your law office, behind police departments and even the U.S. Holocaust Museum, before administrators said people couldn’t play there.
What does it mean for lawyers?
First of all, be careful! People have reportedly been injured because they weren’t paying attention to their surroundings in their quest for getting to the next level of the game. Two players fell off a cliff near San Diego, for instance, and had to be rescued.
The obvious ethics issue is your duty of competence under your jurisdiction’s version of Model Rule 1.1. Comment 8 says that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”
Twenty-one jurisdictions have already adopted the comment, which came into the Model Rules in 2013. But even if your jurisdiction is not one of them, your general duty to have “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” still means you need to understand technological developments sufficiently to be able to advise your clients.
We had occasion to make the same observation about the many legal issues connected with the internet of things — you need to know this stuff because your clients are looking to you for advice and counsel on it. As legal tech guru Bob Ambrogi has said, “You cannot assess the benefits and risks associated with various kinds of technology if you know nothing about the technology.”
Potential hot issues
The ABA Journal has collected some of the developing legal issues with Pokémon Go:
- “Does placing a Pokémon character on a private property, without permission, affect the owner’s interest in exclusive possession?”
- What about putting the creatures in potentially dangerous places — has that created an attractive nuisance?
- “Does owning real property extend property rights to intellectual property elements that are placed on it?”
- An augmented reality game like Pokémon Go can lead to competition for the use of the same physical space. What if that disrupts the ability of players or non-players to enjoy the same space? What if it leads to violence? Who’s liable?
- What First Amendment rights might be involved if government limits the players in a public space?
- What about the game’s terms of service? They “disclaim liability for property damage, personal injury or death while playing” Pokémon Go, “as well as claims based on violation of any other applicable law.” How well will that disclaimer hold up? There’s also a notice “that generally requires arbitration of disputes,” a contested provision in many contracts.
Clients may come to you with these and other novel questions related to Pokémon Go or other augmented reality games, as they become a bigger part of our modern lives. You’ll need to research and analyze the issues if you have clients that might be affected — and many clients will be.
The take-away is to be aware of how these issues may affect your clients, because competent representation involves giving informed advice — not “off the cuff” answers.