Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:

Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.

. . .  

If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 

The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 

The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.

Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Section 10. Site or location removal. 

(a) Within 2 business days of receiving a request from the real property owner, manager, or custodian, the developer of a location-based video game shall remove from its location-based video game an ecologically sensitive site or location, historically significant site or location, site or location on private property, or site or location otherwise deemed as dangerous by the real property owner, manager, or custodian.

(b) In requesting that a site or location be removed from the location-based video game, the requesting property owner, manager, or custodian shall submit a request to the developer of a location-based video game that specifies in sufficient detail the site or location to be removed from the game, and reason for the requested removal. 

Section 15. Removal procedure.  

The developer of a location-based video game shall provide an easily accessible procedure for removal of ecologically sensitive sites or locations, historically significant sites or locations, sites or locations on private property, or sites or locations otherwise deemed as dangerous by the real property owner, manager, or custodian from its location-based video game. 

Section 20. Enforcement.

(a) A real property owner, manager, or custodian may bring a civil action to enforce the provisions of this Act. 

(b) A developer of a location-based video game who knowingly violates this Act is subject to a civil fine of up to $100 for each day of violation.

The bill includes a few definitions, but not enough:

Section 5. Definitions. For the purposes of this Act: 

"Developer of a location-based video game" means any person or business entity which has made or developed and owns the rights to a location-based video game, including any person or business entity which acquires the controlling intellectual property rights to the location-based video game from another person or business entity. 

"Ecologically sensitive site or location" means any area designated by federal, State, or unit of local government for protection from development or damage due to the presence of endangered species or threatened species as defined in Section 2 of the Illinois Endangered Species Protection Act. 

"Historically significant site or location" means any site or location that has been designated by federal, State, or unit of local government for preservation as a landmark, or any other site or location that the federal, State, or unit of local government may designate as historically significant. 

"Location-based video game" means a game primarily played on a mobile device, including, but not limited to, smartphones and tablets, that encourages users to travel to specific real property sites, locations, or coordinates for the purpose of achieving specific goals within the game.

The biggest problem with the bill is that it fails to define "site or location," much less what it means to "remove" a "site or location" from a location-based video game. While the phrase may make sense in the context of the physical world, in the context of an augmented reality game the phrase is fatally unclear. Should the game developer remove a feature from the game's map, such as a PokéStop, Gym, or in-game landmark? Or does the phrase refer to property or coordinates in the physical world -- thereby requiring the developer to remove a set of coordinates or location from the in-game map altogether?

I very much suspect that the bill intends to remove landmarks and features that only exist within the augmented reality of the game. But by failing to write a law that expresses this intent, developers are left with the much more expansive mandate that they modify their games' maps to entirely remove the coordinates and features of locations that fall under the bill's scope, which, I suspect, would be far more difficult than removing in-game features alone.

I also flagged vague language throughout the bill, such as the requirement that a request "specifies in sufficient detail" the location to be removed (sufficient by what measure?); the definition of a location-based video game as a game that "encourages" players to go to locations to achieve "specific goals" (is the random generation of a catchable digital creature on a map "specific" enough?); and a site or location "deemed as dangerous" by a property owner, manager, or custodian (does this mean that the property itself is dangerous, or that the placement of an in-game landmark leads to danger?).

And let's not overlook the bill's muddled and contradictory definition of "Developer of a location-based video game." The definition (initially) purports to cover only those who develop and own the rights to the game, but then goes on to say that this includes those who acquire the ownership rights from another. This second, acquiring class, only has one of the necessary features of the initial definition, but is deemed to be covered by the definition through the use of the term "including." This definition is contradictory and does violence to the term "including," and should therefore be done away with.

Finally, setting aside the muddled text of the bill, there does not seem to be a pressing need for it. Niantic has a system for requesting removal of PokéStops or Gyms from the game. While there appears to have been a breakdown in communication or administration in the case of one park, this hardly warrants the passage of a law mandating a feature that already exists -- albeit now with the inclusion of an arbitrary two-day deadline. 

Representative Cassidy, like Senators Klein and Savino of New York, is proposing an overly broad, overly strict solution to an exaggerated problem. Hopefully, the rest of the Illinois legislature is less-willing to jump on the bandwagon of hastily drafted laws governing augmented reality games.

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Can a Map Maker be Sued for Nuisance?

In a recent post I discussed whether one could sue a map maker for nuisance. For example, say a map maker were to write on a widely-distributed map that a particular house on a street corner was ugly and that people should heckle it. This would appear to constitute a nuisance under section 822 of the Restatement (Second) of Torts which states:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either 

(a) intentional and unreasonable, or 

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

After a bit of digging, I found one case that involves a lawsuit for nuisance based on a map. While not identical to my hypothetical, it is close enough to be noteworthy, and is the only case of its kind of which I am aware. The case is Figlar v. Edwards, 2000 Conn. Super. LEXIS 2897 (Conn. Super Ct. 2000), and it is an unreported superior court decision from Connecticut. A publicly accessible version of the opinion is here.

The relevant facts and nuisance analysis are as follows:

The present case arises from the flooding of a parcel of property. The most recent complaint is in four counts, the first of which sounds in negligence, the second in reckless and wanton misconduct, the third in nuisance and the fourth in misrepresentation. The defendant moves to strike the second, third and fourth claims as well as two prayers for relief. 

John Figlar and John G. Howell purchased the property in question. The defendant, Larry Edwards, doing business as Larry Edwards Associates, allegedly provided "surveying and engineering services commencing from on or about August of 1991 up to and including October 1997 to the property, realtors, contractors, the planning and zoning commission of the town of Newtown, the plaintiffs and other general contractors and/or their agents and/or their advisors for purposes of developing said property . . ." The defendant subsequently filed a resubdivision map with the Newtown town clerk. 

In October 1997, Figlar and Howell commenced construction on the property and engaged the services of the defendant to design and layout the septic system in reliance on the defendant's survey. Subsequently, the septic system and the property flooded because the defendant either failed to find, or failed to indicate, that a storm water drainage system passed on, over and through the subject property.
. . .

As to the third count of the complaint which alleges, in relevant part, that: "9. The defendant, Larry Edwards, failed to disclose and/or depict the drainage easement upon the resubdivision map and that failure has a natural tendency to create a danger of flooding, damage and injury to the plaintiff property owners and the general public in the surrounding area. 10. The defendant's failure to depict this storm water drainage system on the resubdivision map created the continued and repeated dangers of flooding and damages to the plaintiffs' property and the surrounding areas. 11. The defendant, Larry Edwards, was charged to create an accurate resubdivision map of the subject area and he failed, despite knowledge to the contrary, to depict the storm water drainage system upon his resubdivision map. 12. This violation of the A-2 survey requirements and the inaccuracies of the defendant, Larry Edwards, violated the general public's rights to accurate and professional information contained in the recorded public maps and therefore also produced a common injury to the plaintiffs and the general public who relied upon him to properly depict said water drainage system and thereby allow for proper and reasonable development of land and prevention of damages and floodings." 

Both parties characterize this count as one sounding in public and private nuisance. A cause of action for private nuisance has four elements: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Emphasis in original; internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999). In order to allege a public nuisance, a plaintiff must also allege the additional element that "the condition or conduct complained of interfered with a right common to the general public." Id., 459 n.9. 

The defendant asserts that because there is no allegation that the defendant owned, controlled and/or utilized any piece of land in an unreasonable fashion, the plaintiffs have failed to state a cause of action in either public or private nuisance. The plaintiffs claim that it was the maps that were the nuisance causing property. They fail to cite any authority, and the court is aware of none, for the novel argument that nuisance liability extends to those who have ownership or control over a map. The court agrees with the defendant that the plaintiffs fail to allege a necessary element of either public or private nuisance, as they do not allege that the defendant caused them any harm by way of unreasonable use of real property.

Connecticut nuisance law appears to have the added element that a defendant's conduct relate to the defendant's use of land. Accordingly, a defendant who interferes with another's enjoyment of property in some manner that does not involve the use of land cannot be liable for nuisance.

Under the Restatement definition of nuisance, however, I suspect that the Figlar plaintiff may have a viable cause of action. The Restatement does not require that the defendant own or use land in a certain manner, and if the plaintiff's allegations are correct, the defendants may well be liable for their failure to disclose a drainage easement if it results in damage to the plaintiff's property.

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"Virtual Property," "Virtual Trespass," and Nuisance Law: A Pokémon Go Story

This post is a spinoff from some of my recent posts on Pokémon Go litigation which you can find here and here. Pokémon Go's popularity and related litigation has prompted commentators to discuss notions of "virtual property," and related questions of who owns virtual property and whether it can be invaded in instances of "virtual trespass." I think that "virtual property" and "virtual trespass" are poor choices of wording that lead to confused discussions and the breakdown of legal analysis.

My suggestion: stop using these terms. Rather than "virtual property," instead say, "right to enjoyment of property." Rather than "virtual trespass," instead say, "interference with the right to enjoyment of property." In short, nuisance law provides an effective avenue for coherent legal treatment and analysis of Pokémon Go and other augmented reality games. Notions of trespass lead to confusion and unanswerable questions.

For the story that prompted these legal musings, CTV News reports:

A French mayor has denounced the "anarchical settlement" of "Pokemon Go" characters on the "territory" of his eastern village and has ordered the game's creator to remove the virtual creatures.

Bressolles Mayor Fabrice Beauvois said Tuesday that he has mailed a decree to California-based Niantic Inc. and The Pokemon Company to make sure they stop setting up Pokemons [sic] in the village of about 800 inhabitants northeast of Lyon.

In his decree, the mayor says the search for Pokemons [sic] puts pedestrians and drivers at risk because players get inattentive while watching their smartphones and that it may also result in groups of people forming at night

You can find additional reporting on the decree here and here.

The article goes on to note that while Niantic has not responded regarding the mayor's request, Niantic has pointed out that people can request that the company remove a location's designation as a Gym or PokéStop. This solution, however, would not address that mayor's concern, who is requesting that the "territory" of his village be removed from the App's augmented reality altogether.

Here's the logic the mayor used:

"When a cafe or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor. The rule applies to all people wishing to set up an activity or occupy a space on a public property. So it applies to Niantic as well, even though their settlement is virtual," Beauvois said.

The argument illustrates an interesting question: does Pokémon Go's placement of interactive locations and randomly-generated digital creatures onto a map constitute trespass or interference with property rights? Keith Lee confronts this question in this excellent article.

One of the particularly interesting questions Lee raises goes as follows:

You might argue that [Augmented Reality] object[s] aren’t real. That they don’t constitute a physical invasion of property. But:

• To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff’s possessory interest; and (4) substantial damage to the property. Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 2 A.L.R.4th 1042 (Ala. 1979).

Does your exclusive rights to property extend to cyberspace? Can someone place lights, sounds, objects, that are only viewable with technology assistance, on your property without your permission?

As Lee's final question indicates, the notion of "virtual space," when viewed through the lens of augmented reality games like Pokémon Go, leads to mind-bending questions over the definition and extent of "trespass." The interactive nature of augmented reality certainly lends an intuitive push towards accepting the trespass analogy. But taking a step back, putting down the phone, and taking a broader look at how the augmented reality system works leads to a breakdown in applying the logic of trespass. People's houses are not being overrun by small creatures, Pokéballs are not flying through windows -- people's physical property is not being invaded. Without the invasion, the trespass analogy breaks down.

Property owners, however, are not without a remedy. The law of property is not limited to physical property and its invasion. The law of nuisance extends to one's property rights, and interference with those rights. It is through nuisance, not trespass, that property owners may successfully argue that Niantic is causing them harm.

A series of illustrations may help clarify the argument. I'll start with an example involving one of the first forms of augmented reality technology: maps.

Paul is a property owner. He owns a house at the intersection of A street and B street in the town of Iowa City. Michelle, a mapmaker for a prominent mapmaking company, drafts a map of Iowa City for inclusion in the company's bestselling atlas (please, accept for the sake of the hypothetical that people buy physical maps). Michelle, as a prank, labels the corner of A and B Street in Iowa City as "You have got to see this ridiculously ugly house." The label overlaps the plot of land where Paul's house is located. The company fails to catch Michelle's label, and upon sale of the maps, hundreds of people descend on the intersection of A and B street to gawk at Paul's house. They block Paul's driveway and laugh at Paul. Paul tries to sell his home, but the label affixed to his land has tanked the value of the property. Paul feels wronged.

When Michelle labeled Paul's house as "ridiculously ugly," there was no invasion of Paul's land, or of Paul's interest in exclusive possession of the land. Michelle simply wrote an evaluative opinion of the appearance of a house onto a map, and the label happened to overlap with where Paul's house was located in the real world. While the label on the map had real world consequences, the label itself did not constitute a trespass.

Paul, however, has an argument that Michelle's act of labeling his house as ridiculously ugly constitutes a nuisance -- or, in legal terms -- an unreasonable interference with Paul's interest in the private use and enjoyment of his land.

Normally, nuisance law deals with nasty neighbors of one sort or another. It might be a neighbor with ugly cars or it might be a nearby company emitting nasty smells. But the interfering party does not need to be a neighbor. The Restatement (Second) of Torts section 821D defines Nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land," and the concept of one's "private use and enjoyment" is to be interpreted broadly. Prah v. Maretti, 321 N.W.2d 182, 231-232 (Wis. 1982).

Paul appears to have a cause of action for nuisance against Michelle. Michelle's labeling of his house as "ridiculously ugly," coupled with the label's request that people go and see it, are intentional actions that would likely interfere with Paul's enjoyment of his property. Throngs of house-haters aside, it is no surprise that such a label ended up tanking Paul's property value.

Let's take this hypothetical one step closer to Pokémon Go with this fascinating story from Fusion about a piece of property owned by Joyce Taylor that is plagued by constant police investigations, break ins, and threats:

For the last decade, Taylor and her renters have been visited by all kinds of mysterious trouble. They’ve been accused of being identity thieves, spammers, scammers and fraudsters. They’ve gotten visited by FBI agents, federal marshals, IRS collectors, ambulances searching for suicidal veterans, and police officers searching for runaway children. They’ve found people scrounging around in their barn. The renters have been doxxed, their names and addresses posted on the internet by vigilantes. Once, someone left a broken toilet in the driveway as a strange, indefinite threat.

How did Taylor's property become subject to such chaos? From the article:

As any geography nerd knows, the precise center of the United States is in northern Kansas, near the Nebraska border. Technically, the latitudinal and longitudinal coordinates of the center spot are 39 50′N 98 35′W. In digital maps, that number is an ugly one: 39.8333333,-98.585522. So back in 2002, when MaxMind was first choosing the default point on its digital map for the center of the U.S., it decided to clean up the measurements and go with a simpler, nearby latitude and longitude: 38 N 97 W or 38.0000,-97.0000. 

As a result, for the last 14 years, every time MaxMind’s database has been queried about the location of an IP address in the United States it can’t identify, it has spit out the default location of a spot two hours away from the geographic center of the country. This happens a lot: 5,000 companies rely on MaxMind’s IP mapping information, and in all, there are now over 600 million IP addresses associated with that default coordinate. If any of those IP addresses are used by a scammer, or a computer thief, or a suicidal person contacting a help line, MaxMind’s database places them at the same spot: 38.0000,-97.0000.

Which happens to be in the front yard of Joyce Taylor’s house.

MaxMind's labeling of Taylor's property as the default location for unidentifiable IP addresses led to substantial interference with Taylor's enjoyment of the property. But the labeling itself cannot be cleanly labeled as an "invasion" of the property itself. Rather, it is a less-tangible invasion of the similarly less-tangible right to enjoyment of property.

As an aside, this is not to say that labeling property in a certain manner cannot give rise to instances of trespass. Taylor certainly experienced instances of physical invasions of her property when people physically went to the property as a result of MaxMind's coordinates. And causing somebody or something to go onto somebody's private property constitutes an act of trespass. But the act of associating Taylor's property with the default location for unidentifiable IP addresses alone does not appear to constitute the invasion of property that gives rise to a trespass.

Applying all of this to Pokémon Go shows that allegations of interference with property by the company itself should be dealt with in terms of nuisance rather than trespass. When Niantic designates a set of GPS coordinates as a Gym or PokéStop it is not invading that property, but its action may have the direct and (as Plaintiffs may argue) foreseeable consequence of interfering with the enjoyment of the land where those coordinates are located.

An augmented reality app that functions on a level related to, yet beyond, physical property should be dealt with using concepts of interests, enjoyment, and rights that are similarly related to the property. Nuisance is the appropriate legal framework for addressing instances where augmented reality apps are alleged to interfere with people's property.

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