The intriguing legal ramifications of Pokémon Go | Hacker News Reader

The intriguing legal ramifications of Pokémon Go

brettterpstra.com

52 pointsingve34 comments

> Let’s take the example of a restaurant that advertises itself as a “Poké Stop” and utilizes a game image in connection with the stylized “Poké Stop” mark in its store window. That is arguably an instance of both copyright and trademark infringement.

It seems crazy to me that a developer can put a pokestop(or w/e) inside of a store with no notification or permission from the property owner, but the property owner can't put up a sign indicating that a pokestop has been created inside of their store without getting a license. If that's really how the law works we've already reached the dystopian future.

Using the stylized mark could be trademark infringement. Putting up a sign saying "Poké Stop" or similar, as long as you don't use the trademarked font/color/style choices, can't be; it is https://en.wikipedia.org/wiki/Nominative_use .

How do you feel about the Michelin Guide giving a restaurant a Michelin star without their notification or permission?

That's only half the analogy - to make it match, you'd have to say "... and the restaurant can't advertise that fact"

Consumer Reports does this. They can review or write about your product, but they steadfastly refuse to let any company use their name or marks in their advertising, and will sue to prevent it.

You can reject Michelin stars.

But the developer didn't place anything inside the store. They merely advertised that their app will function in a specific way at certain locations. The terminology confuses us with its use of 'a pokestop in a store'.

It's still a perverse situation where you can incentivise such behaviour, but its no different from somebody posting a challenge online stating they would send money to the first 10 people at a location.

Are there any Pokéstops (and gyms) in stores? Almost all of them that I've seen are public art, plaques, signs along nature trails, etc. Some of these are on private property, but I haven't seen any that you'd need to actually enter the property to use. One near me is literally a mailbox. The closest I can think of as a business is a church. All of these things are accessible from sidewalks. They're not really "putting" anything any properties; they're just marking things on a map.

Yes. I know of a local empanada/pizzeria place, a burger place, a furniture store, and a taco place that have stops inside of them (that is, marked on the map as being inside of the building). Also, hotels and office buildings with indoor fountains marked as stops.

The radius of the stop is usually large enough that you don't actually need to go inside.

A BBQ chain here in Louisville, KY was advertising on Facebook their PORKé-Stops and PORKé-Lure events.

I was at Providence hospital at the University of Alaska Anchorage campus for the past week and a half, I had family that was there.

I wanted to get outside and walk around for an hour out of the day, so I downloaded the game and wandered around for a while.

Amazingly, there is a gym right at the ER entrance. (Their hockey arena is also right across from the ER, which strikes me as a poor decision considering how traffic could result in someone being delayed in getting to the ER but I digress.) There is a pokestop outside at the non-emergency drop off cul-de-sac. And to top it all off, there is a pokestop at a piece of art in one of the hallways in what should be a secure area-- there was zero security between my family members room and that pokestop.

The hospital is pissed about it, and rightfully so imo: http://www.ktuu.com/content/news/Providence-asks-Pokemon-Go-...

The issue is that the pokestops are really just the portals in ingress, and ingress was a low-traffic game where people weren't trying to come in every 30 minutes, so inappropriate locations could fly under the radar. Now that it went mainstream, they're being noticed.

Even outside of populated areas, the choices are bad. The closest pokestop to me currently, no longer in Anchorage but now in Fairbanks, is about a kilometer deep into private property.

I'm curious why so many of these issues seem to differ so greatly from any other reason people may be doing something in public.

Does it really matter if they are using an app on their phone instead of reading Yelp or listening to a podcast while they crash into someone, act like an idiot, etc? If I put out a podcast that is meant to be listened to as a walking tour of somewhere do I have these same liability concerns since I'm suggesting locations to the user?

How random would an app maker have to make their AR game to make it clear they just want to make a game that people can play by moving around, without being liable for everything stupid people do in public while they happen to be running the app?

A sufficient difference in quantity becomes a difference in quality. Some of these concerns are merely amusing now, but could conceivably become real problems at scale.

I'm hedging, because I think this is likely to be a fluke event and be a non-issue for a long time. Even if AR games become big, this is probably the first and last time we're all playing the exact same one. Plus over time this sort of thin connectivity to the real world may be seen as a fluke; AR may require much stronger computer vision and real-world understanding to take off in a non-fluke way.

Pokemon Go reminds me a lot of the GPS unit my father had 20 years ago, where all it knew about was cities. I'm not even sure why he bought it, the most interesting thing you could do is zoom out in the Chicago area and roughly see Lake Michigan. Prior to GPS units being hooked up to road databases and able to give directions, they were not that useful. Similarly, for all the flash and pizzaz Pokemon Go may superficially seem to have, all it really has is your coordinates.

This doesn't make it "bad" but it's not clear to me this is going to be a new genre. It may just be one cool fad game, with the "real" stuff still to come in what could even be another 10 years.

I used a GPS that barely had a map. It was still useful. It was nice for day hiking in unfamiliar areas, just record a track and it's easy (within reason) to get back to where you started. I also used it as a "compass", where I set it to point at the destination and then chose a route that tended to head in that direction (say I didn't feel like driving on the busy freeway).

The very first point mentioned in the article is that pokemon go requests access to too much data. This was a bug that has been (or is being?) addressed by the developers [0].

I believe this is usually the occasion to cite Hanlons razor[1].

[0] https://support.pokemongo.nianticlabs.com/hc/en-us/articles/...

[1] https://en.wikipedia.org/wiki/Hanlon%27s_razor

Draft might've been written before the bugfix.

> But now, the XYZ Candy Company building also has become a Pokémon Gym. Players from miles around aggregate to that location because the name and logo are depicted in the app as a Pokémon Gym location. At what point does this mean the app is using the copyrighted design in violation of the copyright registration?

All the pictures used are taken from public property iirc. Wouldn't the copyright for the picture taken and the copyright of the building be two separate things, the former belonging to the taker and licensed to the company? If not, is Google Maps compelled to censor their street views of copyrighted architecture?

There must be a limit - otherwise video games like Grand Theft Auto could put photos of say, McDonalds, in their game and not break any laws. I'm not sure where I sit on whether that's right, but currently they shy away from it for a reason.

An interesting corollary may be use of products in TV - at what point does everyone using a MacBook or Windows (and then having problems with beachballs/blue screens) count as copyright infringement?

There's a gap between "we can legally do this" and "we can legally do this but we don't want to spend more money on lawyers."

I suspect that's the biggest reason - lawyers are easy to throw at problems, getting answers from them is hard, especially with settlements.

http://blog.kenkaminesky.com/photography-copyright-and-the-l... in the "Do I need a model or property release to own the copyright in my photograph" section goes into this a bit.

TL;DR: "In general, if property is visible and can be photographed from a public place, you don’t need a property release to use an image that depicts the property and you may use the photo in any manner. Copyright law provides an exclusion for photographing buildings located on property, but not for statues or other items that may have separate copyrights."

and

"Nevertheless, some companies have tried to prevent the use—both commercially and editorially—of photographs of their buildings or objects via trademark protection or contract law. Examples include the Rock and Roll Hall of Fame, the Lone Cypress tree on the 17 Mile Drive at Pebble Beach, CA, the Golden Gate Bridge, and the “Hollywood” sign. While these attempts have been unsuccessful, it can be expensive to litigate them"

In general, I believe copyright always belongs to a photographer unless they're taking the photos in the employ of someone else, in which case the copyright belongs to their employer. However copyright, trademark and publicity rights are all very different things and it's quite possible that even if you own the copyright to a photo, you can't use it commercially (for example if you're taking a photo of someone and using their likeness to endorse something). Buildings don't seem to have issues like this though.

the bigger concern is the possibility of violating a trademark. If a McDonalds is a pokestop and the image is the golden arches logo that is a trademarked logo that you are now associating with your game. The average person can be confused and think there is some association between pokemon and mcdonalds. That mcdonalds is sponsoring pokemon in someway and hurt their brand

>it can be irritating to suddenly have 50 people show up at a national landmark because it has now become part of a video game

Do you know really need to know why someone is in a public space so we can cast aspersions?

As a DC area resident, the idea of getting upset at 50 visitors to a national landmark is just adorable.

In certain cases, where the landmark is there for peace and reflection (eg: a cemetary), having people running around giggling and laughing is counter to its purpose. Most landmarks wouldn't fall into this category, of course.

I think things will get interesting when augmented reality becomes so ingrained in our society that it becomes difficult to separate it from what is real.

As virtual entities take over the mindshare of 'real entities' in our lives, we might start integrating the virtual entities more into our thought processes and into our artworks - Which would increase the frequency of copyright infringement.

So basically, as the virtual world takes over the real world, companies who produce virtual goods will be able to take over ownership of our reality and therefore of our minds.

Combined with big data, companies will be able to monitor our usage of their intellectual property as part of our lives and charge us for it.

A) we already do, its called a "concept" -- its pretty much the fundamentals of how we see and understand the world around us. Concepts don't need a physical manifestation to have real effects. (e.g. wave patterns)

B) This isn't much different than headphones, just for your eyes. Temper your fears with what being able to take music everywhere did to make a dystopia.

> B) This isn't much different than headphones, just for your eyes. Temper your fears with what being able to take music everywhere did to make a dystopia.

Being able to take music everywhere ushered in the aggressive copyright regime we now live in; DMCA et al.

>Temper your fears with what being able to take music everywhere did to make a dystopia.

Well, it cheapened music listening a lot. People that have not been around for the vinyl era don't have any idea how much more important and communal music listening and pop music was back then.

>Temper your fears with what being able to take music everywhere did to make a dystopia.

A culture of self-isolation in public spaces where 50% of inhabitants are stuck in semireality instead of a functional member of the environment? It's a bit dystopic, just socially acceptable.

From what I've seen, many of these locations can be accessed without ever actually entering the property. The name, description, and photos are user-generated, and no more illegal than what Google Maps provides. Some locations are unique (airports come to mind), but most of the IP risk seems completely frivolous to me.

There is a PokeGym smack-bang in the center of the pentagon. I don't think you can't even enter the building without security clearance.

https://www.inverse.com/article/18034-pokemon-go-in-white-ho...

I liked seeing a chiptunes musician and promoter promise "LURES ALL NIGHT!" for his DJ set at jwz's new club: https://twitter.com/8bitsf/status/757067417910509568

This is an interesting article. I find it a bit curious though that Niantic hasn't solved these problems for itself, given that they already had Ingress before developing Pokémon Go. Of course, Ingress is miniscule in comparison; I wonder if Google's legal team even bothered to take a look.

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