Pokémon GO is by now a bona fide mobile app craze and well-known to millions of players. Released only two weeks ago, the smartphone game’s daily active user base has already surpassed that of Twitter (0). As millions of players venture outdoors to capture exotic creatures through augmented reality, one might stop to ask: who could stop the fun? Lawyers, of course (always a good answer)! And, though it may surprise some, we can’t leave out net neutrality advocates as possible fun stoppers.
Liability in a Pokémon-filled world
First, the lawyers. Pokémon GO is infectiously entertaining and might even help reinvigorate civic life (1). What could possibly go wrong? Let a law professor count the ways! Personal injury immediately comes to mind and indeed has already occurred. There are reports of distracted players falling off embankments (2), wandering into traffic (3), and even crashing into police cars (4). Property damage is also a possibility: imagine a user who, following a Pokémon, falls off the edge of a sand dune, dropping and breaking her own iPhone in the process. We could also see damage to other people’s property by distracted users. Trespassing is also in play: a user tries to capture Pikachu on the private lawn she has wandered onto.
What about disclosure of private information? The app requests access to points of personal information like location tracking and cameras to enhance the experience – what if that is hacked and leaked to unauthorized third-parties? Finally, the legal bonus round: what if you are in your Tesla, using driverless technology and playing Pokémon GO on your Samsung phone, and hit a distracted teenager who is also playing Pokémon GO on his iPhone? (For more examples from lawyers highly attuned to liability concerns see here (6) (5), here (6) (5) and here (7), and a terrific summary here (8).)
Who can you sue when things go wrong? The short answer is “everyone.” As a preliminary matter, it is difficult to figure out who “everyone” is in the multilayered and highly interconnected Internet ecosystem. In the bonus example above, you have many potential defendants – Tesla, Samsung, Apple, and, of course, all the Pokémon GO companies and affiliates. But then there are the middlemen to mobile service provision — ISP providers, subcontractors, etc. They are also potentially liable.
The ever-mysterious terms of service agreement
Once you’ve determined who you would like to sue, however, your chances of actually being able to sue, let alone win, will be slim. The reason is contract law. When you use Internet services you sign a terms of service agreement. You’ve signed dozens, maybe hundreds in your life already. It’s that window filled with scrollable text that pops up before you download an app (read this before proceeding it may say) and makes you click an “I agree” box before completing the download. Clicking that box is the legal equivalent of your signature. Once you click and proceed, you have likely entered into a valid contract. You signed one for Google, you signed one for Pokémon GO, you signed one for Samsung, Apple, Verizon, T-Mobile. The list goes on and on.
The Pokémon GO terms of service (9)contains two key provisions: first, if you have any type of legal claim or complaint, you cannot sue the company, but must instead submit the claim to arbitration (not court). Second, under the terms of service you have contractually agreed to play at your own risk, and thus you will likely lose any claim based in tort liability. Specifically, according to the agreement, “The Pokémon Company (“TPC”) and TPCI disclaim all liability related to any property damage, personal injury or death that may occur during your use of our Services, including any claims based on the violation of any applicable, law, rule or, regulation on your alleged negligence or other tort liability.”
The terms of service contract for most companies is highly analogous to that for the Pokémon company, so in the end, you, the consumer, will be responsible for your own Pokémon GO playtime — not necessarily a bad result, but one that is perhaps obscured to some consumers by the esoteric nature of terms of service contracts.
Net neutrality activists get in on the fun
Finally, we all assume lawyers can be killjoys, but net neutrality activists? In a continuation of the seemingly constant battle net neutrality purists wage against consumer benefits, T-Mobile’s move to give you Pokémon GO without data charges has provoked the ire of activists. Is this a net neutrality violation — showing “preference” to one app over others? We increasingly hear responses (10) like this one: “To be clear: making Pokémon GO exempt from data caps is bad for net neutrality, for the same reasons making certain video and music apps exempt is a bad idea.” As I and others at TechPolicyDaily.com have written, this is exactly the elite, top-down decision making that marginalizes actual consumers over self-appointed consumer advocates. If T-Mobile’s program is popular with consumers, it will help raise T-Mobile’s position against the two leaders in the mobile market — Verizon and AT&T — thereby making that market more competitive and in turn providing consumers more power through viable competition. If it is not popular with consumers, T-Mobile will try another tactic to compete. Either scenario makes consumers winners. That sounds fun to me.