Class action targets Niantic, Nintendo for encouraging gameplay trespass

Nostalgia

Remember Pokémon Go? We ask because it’s been nearly two years since it was released.

Back in 2016, the game was a huge fad, and many people still play it. If you weren’t part of the craze, or have since forgotten because a hundred years of events have occurred in the intervening months since its release, here’s a refresher.

In the original Pokémon video gaming franchise, players (also called trainers) attempt to catch and collect Pokémon, the sometimes-mostly-cute fantasy creatures from which the franchise name is derived. They then use Pokémon from their collections to have creature-to-creature battles with other players.

The added twist Pokémon Go put on the franchise is that the hunt for the creatures takes place in real life. Pokémon Go is a smartphone application; when a player comes close to a real-world location determined by Niantic, the games’ developer, he or she receives an alert that a Pokémon is nearby. The phone’s camera display then depicts the Pokémon as part of the real-life environment. Players use the app to try to pursue and catch the Pokémon.

What could go wrong?

Who Will Train the Trainers?

Sure, the game was a smash success, boasting 750 million downloads by the first anniversary of its release. But its popularity unleashed hordes of Pokémon-obsessed players on the real world, where before they had been safely tied to a gaming console or a passive, purely virtual gaming app.

Because Pokémon and Pokémon training centers − “Pokéstops” − were placed in environments with high concentrations of gamers, players were tracking down their quarry in inappropriate locations − not just in innocuous streets, parks and fields. There were complaints about Pokémon players congregating in the National Holocaust Museum, the National September 11 Memorial and other culturally sensitive locations. Players gathered in dangerous spots too − railway tracks, for instance.

And, of course, on people’s lawns.

Pokélaw

Shortly after the release of the application, Jeffrey Marder, a resident of West Orange, New Jersey, filed a class action in the Northern District of California. Pokémon players, he claimed, had appeared at his front door, asking for access to his backyard so that they could catch Pokémon that had been placed there. Because he had not given the game developers permission to use his physical address in connection with the game, he sued Niantic, Nintendo (the franchise owner) and The Pokémon Co. (the franchise’s marketer and licenser).

Marder, citing similar cases across the country, argued that the companies’ conduct gave rise to claims for nuisance and unjust enrichment; his case was merged with several other plaintiffs’ cases alleging similar circumstances, some arguing that the defendants’ actions gave rise to trespass claims.

The Takeaway

Niantic and its co-defendants fired back with a motion to dismiss, maintaining that the plaintiffs’ trespass claims failed because virtual Pokémon game assets do not actually intrude onto real property. Moreover, the defendants specifically “required players to promise they would not trespass before they could play” through their terms of service. The defendants also argued that a nuisance claim was not stated because the plaintiffs failed to establish that Niantic was the “legal or proximate” cause of the players’ behavior. This approach to liability, the motion argued, would leave innumerable online services open to legal attack.

Despite the motion, the case will continue. The court denied the defendants’ motion to dismiss, noting that the idea of “virtual trespassing” was novel enough that it should not be decided at the motion to dismiss stage. The court also indicated that defendants’ arguments were really about issues of fact, and were therefore more appropriate for determination following summary judgment.