Where Pokémon Go goes, inevitable courtroom fights appear to lurk

Japanese gymnast Kohei Uchimura fell from the horizontal bar in preliminary competition at the Rio Olympics, landing on his back with a resounding thud. The resulting score of 14.300 meant he would not bid for gold, even as the reigning world champion of the event, six-time world gymnastics champion, defending Olympic gold medalist in men’s gymnastics and the “greatest gymnast ever” according to USA Today.

As ignominious as it was, Uchimura’s horizontal bar dethroning was not his most embarrassing Rio moment. The 27-year-old incurred nearly $5,000 in roaming charges on his cell phone seeking to play the summer’s overwhelmingly popular game, Pokémon Go.

Unfortunately for Uchimura, he got nothing for his efforts. It turns out the game was not yet available in the Olympic Village — or in the rest of Brazil.

However, the Pokémon Go app has been available since July 6 in the United States, where it has become a bona fide sensation, downloaded more than Tinder and used more widely than Twitter. Pokémon Go was downloaded more in its first week than any other app in the history of Apple’s iTunes.

For the uninitiated, Pokémon Go is an “augmented reality” game available as a mobile phone application. The app taps into the GPS system of smartphones to enable players to search for and catch Pokémon (or pocket monster) characters in real-life locations and collect items at places dubbed Pokéstops or gyms.

Using the phone’s camera mode, the game displays an image of a Pokémon on the phone screen superimposed over the actual, real-world image. Swiping the phone screen “catches” the Pokémon and players can then engage in virtual “battles” with other players’ Pokémon creatures.

Tales of Pokémon Go gaming gone awry are fast piling up. In Wyoming, the game led a teenager into the woods where she stumbled upon a corpse in the Wind River. Two Ohio players were arrested for breaking into a zoo after hours to hunt for Pokémon.

Meanwhile, two Southern California players suffered injuries after falling from an unstable ocean bluff while tracking the mythical Pokémon characters. In Baltimore, a motorist playing Pokémon Go crashed his car into a police patrol vehicle.

The phenomenon is equally newsworthy internationally. The Auschwitz-Birkenau State Museum in Oświęcim, Poland, has had to issue a call for its historic sites to be removed from locations where Pokémon characters can be hunted. In Tokyo, police arrested a man for allegedly assaulting a woman playing Pokémon Go whom he believed was taking pictures of him.

In Sydney, a distracted 22-year-old woman playing the game was allegedly killed by a hit-and-run driver. And north of Toronto, a woman was arrested for firing her pellet gun at a group of players attempting to capture the digital creatures near her home. (No such episodes are reported in Iran, where the game is banned.)

So perhaps it should come as little surprise that Pokémon litigation has erupted.

After at least five people allegedly knocked on his door requesting access to the Pokémon characters their mobile phones showed were lurking in his backyard, Jeffrey Marder of West Orange, N.J., brought suit.

Marder named the game’s developer and publisher, Niantic Inc., its marketer and licenser, The Pokémon Co., and the publisher of the Pokémon video game series, Nintendo Co. Ltd. His federal lawsuit, filed on July 29 in Oakland, Calif., near Niantic’s headquarters, seeks class-action status.

The theory of liability centers on the GPS coordinates the game designates as Pokéstops or Pokémon gyms often falling on or adjacent to private property without the owners’ consent.

Citing widely reported accounts of other such designations, including tweets from other aggrieved homeowners, the complaint asserts Niantic designates properties “with flagrant disregard for the foreseeable consequences of doing so” and even references the U.S. Holocaust Memorial Museum in Washington, D.C., as an example.

The defendants are charged with deriving “immense” profits by encouraging millions of Pokémon Go players “to make unwanted incursions onto the properties of the plaintiff and other members of the class — a clear and ongoing invasion of their use and enjoyment of their land.”

At first blush, both theories of relief devised for this alleged invasion of the use and enjoyment of land, “nuisance” and unjust enrichment, may seem like a stretch. However, California’s common-law nuisance theory, applicable to conduct directly or indirectly interfering with or creating a condition that interferes with one’s free use of his property, does seem to squarely fit.

By alleging that Niantic continues to designate Pokéstops and Pokémon gyms at GPS coordinates on or near private properties without the owners’ consent, Marder’s class action may well survive the all but certain motions to dismiss it will face.

Just as the game encourages players to explore their surroundings in search of virtual creatures, the defendants may face discovery exploring whether the placement of these creatures on private property intending that they get captured sufficiently interferes with the owner’s use of the property to qualify as a nuisance.

Unjust enrichment is a harder claim to envision withstanding motion practice. Many (but not all) California courts no longer recognize a standalone cause of action for unjust enrichment, instead, treating it as a form of restitution.

Some will treat a claim for unjust enrichment, which usually alleges a defendant received an unjust benefit resulting from mistake, fraud, coercion or request, as a quasi-contract claim seeking restitution.

Should the unjust enrichment claim not be rejected out of hand based on California law, asking a federal judge to somehow view a claim based upon the unauthorized placement of virtual images in a homeowner’s backyard as a quasi-contract claim seeking restitution seems like a losing “battle.”

The Pokémon phenomenon already seems too ingrained in the 21st-century culture to be judicially curtailed to any significant extent. Perhaps like the renowned “no-call” list, the litigation might prompt a “no-locate” list for Pokémon placement, enabling disaffected property owners to seek the exclusion of their GPS coordinates. Not every “battle” must be fought out.

To view the article as it appears in the Chicago Daily Law Bulletin, click here.

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