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Augmented Reality Games: Issues to Consider for Terms of Service/Privacy Policies

Based on the popularity of games like Pokémon GO, augmented reality (AR) games are sure to become even more popular. However, unlike standard games, the interactive nature of AR games poses new legal issues.

AR games allow players to travel through the real world while interacting with digital characters or objects that have been programmed to appear like they exist in physical space. For example, Pokémon GO uses a smartphone’s GPS to direct players to real-life locations where they catch fictional creatures called Pokémon that appear as superimposed images through the phone’s camera feature.

The sudden popularity of Pokémon GO will likely bring about a slew of legal issues. AR game developers would be wise to address these issues in their terms of service and privacy policies.

Trespass and Physical Harm Disclaimers in the Terms of Service

One of the benefits of AR games is that unlike standard games, which are sedentary, AR games encourage the player to “leave the couch” and travel in search of the virtual prize. However, players may find themselves trespassing on private property or injuring themselves or others as they wander in search of virtual characters. There already have been numerous reports of physical injuries involving Pokémon GO, and it has led to muggings, car crashes, cliff rescues and, recently, a shooting.

The Pokémon GO Terms of Service specifically warn users to be aware of their surroundings and to play safely. Importantly, the game’s Terms of Service disclaim all liability related to property damage, personal injury or death, and violations of law such as trespass or negligence. Although the foreseeability of potential harm may lead to legal challenges for the terms of service, it is imperative to include in your terms of service a warning to users about the potential harm and to allocate the responsibility to the user, who is ultimately responsible for the manner in which they choose to play the game.

Date Collection and Privacy Policy

Pokémon GO collects vast amounts of data. Some of this data is personal information, such as names and email addresses. Much of the data is location information. As with any privacy policy, it is important for privacy policies for AR games to identify what information the company collects, and how the company uses that information. The Pokémon GO Privacy Policy contains several key components. It describes the type of information Niantic (the company behind Pokémon GO) collects, and how it uses that information. The Privacy Policy also accounts for use of the services by children—stating that Niantic complies with the verifiable parental consent requirements mandated by the Children’s Online Privacy Protection Act (COPPA), as well as describing the process for such compliance. The Pokémon GO Privacy Policy also distinguishes between US and European users with regard to email. US users are automatically registered to receive emails with the option to opt-out, while European users have to opt-in to receive emails from Niantic.

Conclusion

The foregoing only highlights some of the legal issues posed by AR games like Pokémon GO, and the treatment of such issues in the game’s privacy policy and terms of service. The key point is that gaming companies should inform their users of their rights and responsibilities; a well-drafted privacy policy and terms of service can accomplish that goal.

Copyright © 2018 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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About this Author

Shokoh H. Yaghoubi, Communications Attorney, Morgan Lewis Law Firm
Associate

Shokoh H. Yaghoubi is an associate in Morgan Lewis's Global Outsourcing, Technology, and Commercial Transactions Practice. Ms. Yaghoubi's practice focuses primarily on technology-based transactions, including technology and content licensing, transfers of intellectual property rights, joint development and joint venture arrangements, distribution and sales arrangements, supply, service and outsourcing agreements, manufacturing and foundry relationships, and cross-border licensing and strategic alliances. Ms. Yaghoubi regularly counsels clients on intellectual property strategy and...

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Rahul Kapoor is a partner in Morgan Lewis's Business and Finance Practice, the firmwide hiring partner, and a member of the firm's Legal Personnel and Finance Committees. Mr. Kapoor has deep transactional experience in strategic alliances, joint ventures, corporate partnering transactions, standards body licensing structures, intellectual property strategic counseling, technology licensing, open source software strategy, electronic commerce and privacy, supply and distribution agreements, consignment agreements, spin-outs and core technology licenses, IT outsourcing transactions, as well as intellectual property due diligence issues in connection with mergers, acquisitions, IPOs and corporate financings.

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