Abstract
The digital mapping applications underlying augmented reality have strong public benefits but can also have unappreciated effects on real property. In recent litigation on Pokémon Go, an enhanced digital mapping application in which players participate in a digital scavenger hunt by visiting real world locations, homeowners alleged that the augmented reality application harmed their residential properties by increasing the number of people in their residential areas. However, neither the existing laws on intellectual property nor those for real property are designed to address these types of harms. On the one hand, real property torts, such as nuisance and trespass, on which the homeowners relied, are ill-suited to address harms from a digital application as they are based on a right to exclude and consent. On the other hand, intellectual property laws have not focused on harms that could result from the intersection of intellectual property rights and real property. If it were to be framed anew, the basis of the homeowners’ claims would be most analogous to asserting “a right not to be mapped.” However, there is not yet a “right not to be mapped” in law, and there are compelling reasons for the law not to create one. We recommend three alternative mechanisms to regulate the relationship between augmented reality and real property. We recommend the application of zoning principles as a legal mechanism designed for location-sensitive regulation, which can balance the concerns of individual real property owners, as well as the larger context of community and city interests, and be adapted to innovative technologies such as augmented reality. Additionally, we suggest that catalogues of augmented reality applications be created to support zoning decisions and to provide public notice. We also consider the possibility of licensing schemes with micropayments for real properties affected by augmented reality.
Highlights
James Boyle cautioned in 2003 with respect to intellectual property that “We are in the middle of a second enclosure movement.” Under the first enclosure movement, common land—real property—was fenced off into private land
It is perhaps telling that a swift response to the first popular augmented reality phenomenon was litigation that pitted individual property owners against large technology companies
We argue, of the need to look beyond the traditional legal frameworks of real property, with its emphasis on the right to exclude, and intellectual property, with its emphasis on non-rivalrousness, toward legal frameworks such as zoning to balance the interests of real and intellectual property owners, neighborhoods and communities, and the broader public interest
Summary
James Boyle cautioned in 2003 with respect to intellectual property that “We are in the middle of a second enclosure movement.” Under the first enclosure movement, common land—real property—was fenced off into private land. A paradigmatic example is the litigation claims brought by homeowners alleging that the augmented reality game Pokémon Go caused damage to their residential properties and neighborhoods Given that their alleged injuries relate to harms about real property, the court claims not surprisingly have been framed in the real property torts of trespass and nuisance. Other digital technologies that affect real property, raise many legal issues in relation to the display of information (such as obscenity, defamation, intellectual property including trademarks, political advertising, and commercial advertising) (See, for example, Tech Policy Lab 2015). In addition to zoning as a legal mechanism to regulate augmented reality’s effects on real property, we recommend that digital catalogues of augmented reality applications be created to provide notice to property owners and to help regulators weigh zoning decisions.
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