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When can real-world laws invade augmented reality fantasies? A trial in Milwaukee will decide

AR 'doesn't qualify' for free speech protection

By Thomas Claburn, 7 Jun 2017

Analysis In the blue corner: Candy Lab, a maker of augmented reality games, which doesn't want people banned from playing its distractions in public places.

In the red corner: attorneys representing Milwaukee county, which wants to protect its parks from being trashed by boozy, stampeding gamers.

Candy Lab thinks free speech protections should prevent bylaws from being put in place to block augmented reality games from being used in certain spaces outdoors, such as parks. The Milwaukee lawyers disagree.

It's a battle over reality: it's not so much game visuals invading the real world, it's the real world and its rules and laws invading games.

Last year, a different game company, Niantic, released Pokémon Go, an augmented reality game that encourages players to hunt for animated creatures that have been placed at real-world locations. Over the summer, the game proved popular enough that at least one military installation, Joint Base Lewis-McChord, warned troops to be careful hunting for Pokémon.

In August, Milwaukee's Lake Park saw swarms of Pokémon Go players, some of whom trampled and trashed the area, making a general nuisance of themselves.

Not everyone behaved badly, as John Dargle, Jr, director of the Milwaukee County Department of Parks, Recreation & Culture, acknowledged in a letter [PDF] at the time. But a subset of thoughtless gamers created enough of a burden that Milwaukee County Supervisor Sheldon Wasserman proposed an ordinance [PDF] to require augmented reality game makers to obtain a permit to use county parks in their apps.

The ordinance was approved and took effect in January. It has become a solution waiting for a problem – according to a spokesperson for Milwaukee County, no game maker has bothered to apply for a permit since then.

The flash mobs arising from Pokémon Go have turned out to be a singular phenomenon. According to a ComScore report, the number of daily average users of Pokémon Go in the US went from 28.5 million in mid-July, 2016 to about 5 million by the end of the year.

Lake Park, as Pokémon Go players arrive

Lake Park, as Pokémon Go players arrived

Nonetheless, in April, Candy Lab, a maker of augmented reality games based in Nevada, filed a lawsuit "out of genuine fear and apprehension that this ordinance, conceptually and as written, poses a mortal threat not only to Candy Lab AR's new location-based augmented reality game, but also to its entire business model, and, indeed, to the emerging medium of augmented reality as a whole."

Candy Lab's complaint takes issue with its interpretation of the permitting requirements. These include:

  • Assuming liability for the behavior of players.
  • Providing $1m in general liability coverage.
  • Sending a company representative to areas where the game is being played.
  • Providing portable restrooms for every 100 players in an area.
  • Parking fees.
  • Pre-approval of content and content revisions.
  • Taxes on revenue from in-app purchases made in permitted areas.
  • Forced display of the Milwaukee County insignia.

Candy Lab's concern is that rules of this sort, if adopted elsewhere in the US, would bankrupt companies involved in augmented reality games. And legislators have begun paying attention on a national level.

We're the government and we're here to help

In November, 2016, the Senate Committee on Commerce, Science, and Transportation held a hearing on augmented reality.

And last month, US Representatives Suzan DelBene (D-WA), Yvette Clarke (D-NY), Bill Flores (R-TX), Darrell Issa (R-CA) and Ted Lieu (D-CA) formed the Congressional Caucus on Virtual, Augmented and Mixed Reality Technologies for the 115th Congress. The legislators insist they want to help, not hinder, these emerging technologies.

Milwaukee County's legal team doesn't think much of Candy Lab's latest augmented reality game, Texas Rope 'Em. Launched at the South By Southwest conference in March, the app puts players in a game of poker that requires them to visit locations to collect virtual cards.

In a court filing [PDF] last week to deny the game maker's request to block the ordinance, Milwaukee County's attorneys advance several arguments. The first is that Candy Lab has no valid grievance because its app doesn't qualify for protection under the First Amendment.

"Texas Rope 'Em does not convey any messages or ideas, but rather is a simulated gambling game which is not entitled to First Amendment protection (and which is also illegal)," the county's complaint states.

This may be a difficult assertion to maintain in the wake of the Supreme Court's 2010 decision in Brown v Entertainment Merchants Association, which found: "Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And 'the basic principles of freedom of speech ... do not vary' with a new and different communication medium."

The county's filing contends that this Supreme Court decision "does not say that every video game (whatever that means) automatically enjoys First Amendment protection." It argues that Texas Rope 'Em "lacks the characters, dialogue, plots and social messages that the Supreme Court found significant..."

"In a word, I think their argument is terrible," said Brian Wassom, a partner at Warner Norcross & Judd who is representing Candy Lab, in a phone interview with The Register. "I think it's clear they don't quite grasp the the breadth of First Amendment."

Milwaukee County's legal representatives make other arguments challenging Candy Lab's right to bring a claim, alleging lack of harm and lack of standing. Their last argument is simply about money.

"Finally, Milwaukee County's need to preserve the integrity of its parks greatly outweighs Candy Lab's bottom line," the county's filing states.

Wassom said he didn't think any of county's arguments are persuasive. "Obviously, it's legitimate for the county to want to protect its parks," he said. "But this is an illegitimate way to go about it."

The county, he said, should ticket or fine offenders instead of going upstream to ban content.

Wassom said he has three weeks to respond to the county's motion, after which the county will have the opportunity to reply.

Wassom, who wrote a book on the legal implications of augmented reality, said he expects to see more litigation related to trademark, copyright, privacy, personal injury, and liability issues as the technology proliferates. "Disputes follow money," he said.

On Monday, without yet ruling on Milwaukee County's motion to dismiss the case, the judge directed both parties to prepare for a trial on April 16, 2018.

Milwaukee County officials didn't immediately respond to a request for comment. ®

Updated to add

In an email that arrived after this story was published, Milwaukee County counsel Margaret C. Daun offered the following statement:

“It is not the intent of the county to eliminate location-based augmented reality games from its parks, but only to minimize negative consequences while encouraging activities that bring residents and visitors to our parks system, which is widely-recognized as one of the best in the nation. The county appreciates that Candy Lab has raised important issues in its lawsuit concerning the constitutional protection that should be afforded to augmented reality games. To that end, the county is exploring ways to potentially modify the ordinance and/or the permitting process, if appropriate.

“Importantly, for any county, but particularly one like Milwaukee, which faces significant fiscal constraints, it must ultimately be the case that augmented reality games are susceptible to regulation. If otherwise, then public property, like parks, which should be available for the use and enjoyment of every citizen, will be effectively co-opted by private companies to subsidize their for-profit enterprises, on the backs of taxpayers, who will be forced to foot the bill for the cleanup and other significant expenses that will result as public parks or other public areas are turned into limitless ‘augmented’ game boards.”

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