Opt Out of Pokémon Go Terms of Service Before You Fall Off a Cliff . . . Literally

by sirokylawplc

The Pokémon Go craze has hit West Tennessee full force. No matter your occupation or age, Pokémon Go has appealed to a wide-aging and wide-ranging demographic of West Tennesseans. In just five hours, Pokémon Go reached the top of the app download charts in the United States.  In a matter of just one week, it overtook Candy Crush Saga to become the biggest mobile gaming app in U.S. history based on peak daily active users. The stock of Nintendo, an investor in Pokémon Go’s developer, Niantic Labs, increased by 10% overnigh and 86% in the first week following its release, adding $15 billion in market value to the company.

For those of you who have been living on another planet the past two weeks, Pokémon Go is a smartphone app which uses an augmented reality treasure hunt to let players catch digital Pokémon characters from their mobile devices. The new app from Niantic Labs (owned in part by Nintendo, Google, and other tech giants) uses your phone or mobile device’s GPS and clock to detect where you are and to make digital characters appear on your phone screen through your phone’s camera. These digital characters might be in a public place, a bathroom, your neighbor’s yard, and, yes, even at the courthouse. Your job is to find them all and catch them.

The law nerd in me wondered what liability Niantic Labs has to gamers and other unsuspecting third-parties by creating a phenomenon that encourages gamers to walk, drive, and run through the real world staring at a smartphone screen while trying to catch a Pokémon. The problem may be that gamers are so enthralled in the augmented reality game that they could hurt themselves, hurt others, unknowingly commit a crime, or be the victim of a crime by another who uses the app to intentionally hurt someone. Who is liable when one gamer places a Pokémon character in a dangerous location that causes another gamer to be injured or assaulted? Oftentimes, multiple gamers wills show up to the same place and physically compete for the same physical space while trying to catch a Pokémon. What happens when one gamer hits another one in the face while trying to catch a Pokémon?

Those pesky digital terms of service that we all scroll down numerous pages that we don’t read when we are anxious to open a new app and quickly check “I agree” are worth reading in this app. The Pokémon Go terms of service purport to:

  1. Disclaim Niantic Lab’s liability for property damage, personal injury or death while playing the game;
  2. Strip the rights of app users to file a lawsuit against the company through a restrictive arbitration clause; and
  3. Prevent any type of class-action against the Niantic Labs

With the massive numbers of gamers playing a game that encourages players to go to unfamiliar public and private places while staring at a screen and not paying attention, it is inevitable that there will be a lot of “GoSuits” that assert liability against Niantic Labs and others arising out of players conduct while gaming. In fact, there may already be some “GoSuits” that have been filed.  As augmented reality becomes a reality in West Tennessee, it will be interesting to see how it may impact or help develop our State’s laws.

According to a recent post by Chris Morran of The Consumerist, the Pokémon Go terms of use include an arbitration opt-out provision for people who do not want to give up their right to file a lawsuit. According to the article, a user must opt out within 30 days of first agreeing to the Terms of Service by sending an email to termsofservice@nianticlabs.com with “Arbitration Opt-out Notice” in the header of the email. https://consumerist.com/2016/07/14/pokemon-go-strips-users-of-their-legal-rights-heres-how-to-opt-out/.

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Pikachu at Siroky Law, PLC

There is a rumor that Pikachu is hiding out in my office conference room.  If you try to break in over the weekend to catch him, good luck explaining it to the officer who responds.

 

Todd Siroky is a business and healthcare attorney at Siroky Law, PLC

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