Do physical borders still matter in digital space? How Pokémon Go kicked-off a hyper-real property law debate.

Cover for Pikachu arrested for digital trespassing!

Coming home from work yesterday, my apartment had a very exotic furry smell to it. I also noticed weird footprints on the ground, much too large for insects, but nothing like my cat… after I checked my Pokédex I quickly found out that it must have been a wild Pikachu, probably hiding somewhere behind my closet!

Luckily this didn’t actually happen, my apartment is still just as clean as I left it. Although I did have to take a detour going home because there was a road blocking. It was blocked due to a significant number of Pokémon trainers looking to collect their latest booty. That was exactly the time I asked myself:

Can digital content actually trespass in to physical space?

If you’ve followed current press releases you probably know that Pokémon Go is an augmented reality game, using real-world landmarks for gaming content. You’ll find a virtual ‘Pokestop’ at real-world locations for your virtual restock and get rewarded for hunting little monsters spread out (seemingly) randomly around town.

Following the digital evolution of recent years this discussion is not completely new. Looking back on the introduction of services like Google Street View, we can also see how digital content exerted an influence on physical space. Home owners didn't want their house depicted and Google reacted by blurring their houses as an opt-out of the digital environment.

Pokémon Go brings something new to the equation - it actually influences the physical behavior of people in private and also public space, since its digital content can only be accessed at a specific location! People are hunting down Pokémons in all kinds of situations, creating a controversial discussion about the game and especially its players (Holocaust memorial, White House, etc). The issue clearly lies in the spatial distribution of the digital critters.

Cover for Pikachu arrested for digital trespassing!

Pokéstop in Bern

People gathering to collect Pokémon in Bern
Photo by: Fred Schaerli CC-BY-SA 4.0

It is quite obvious that a person can get into trouble for physically entering a space he/she is not supposed to enter. This offence is called trespassing and is covered by criminal law worldwide. As a property owner I have the ‘natural right’ to control things physically entering my property. This right mostly stems from the constitutional guarantee of property rights and thus is seen as ‘natural right’.

But how far does this guarantee reach? While the ground itself is an obvious part of a property the prevailing opinion in legal science also includes the ‘air column’ above the owned ground. Properties are then often safe-guarded by fences or doors on ground level. The ownership of the ‘air-column’ allows owners to prevent others from building above their house.

Now that we have physical ownership covered we should ask ourselves: who owns the digital layers of spatial information hovering over my property? Do these digital layers in public also belong to the public domain and are they free for everyone to use? Or can they be claimed as a part of the property rights guaranteed to the owner? Or is an overlaying digital property owned by the provider?

Technically this space should belong to the entity providing the digital information. But as soon as this information is spatially bound to a location (e.g. my property), it triggers other mechanisms. Imagine a super rare Pokémon hidden in your backyard and thousands of digital pilgrims physically entering your backyard to hunt it down.

If you want to fight the symptom you’ll tell everybody to leave. But how can you get rid of the cause? You somehow need to be able to control the digital content trespassing on your property! Since platform providers tend to have deliberate control of their content, it should be possible to make this happen.

The central question is though, at what point would a property owner have to go down this road? And even before that: from what point will this be a matter of property ownership?

In general, it needs to be distinguished from property rights that apply to tangible goods (houses, cars etc.) and intellectual property rights that apply to intangible goods (copyright for literary property, architecture etc.). Since the virtual representation of a building itself is intangible and does not touch the ‘real world’ it cannot be controlled by the property right laws in general.

However, a solution has to be found to help property owners control their property against the virtual use of a building that has ‘real world’ consequences. Sticking with our example: by motivating hordes of Pokémon Go players to access their buildings.

Cover for Pikachu arrested for digital trespassing!

Hunting Pokémon on the go!

Traffic Board in Florida warns users to take care!
Photo by: Cyclonebiskit, CC-BY-SA 4.0

The recommendation to safeguard the property through doors, locks and fences is just as simple as unsatisfactory for the building owner: no one wants to have a crowd of people at the front gate trying to open doors or find alternative ways to access the property. Even public property owners (e.g. churches, public spaces or buildings), that might not want fences or restrictions installed, can have a legitimate interest in excluding Pokemon Go players from their property – maybe because they are blocking the road like in Düsseldorf.

Looking into the dusty archives of non-digital German-Prussian law, we’ve found a fruitful thought that might be transferable to this cyber-real question. Back then the principle was coined as “Zweckveranlasser” (“Purpose initiator”): According to this legal principle, someone whose behavior creates risks for third parties by motivating others to damage someone else's goods, has a duty to cease and desist from this behavior.

This principle was developed more than a hundred years ago, when Pokémon were still caught in a vortex of complete chaos and nothingness. It was a quite curious case from today’s point of view: a retailer put mannequins into his shop window that were not yet dressed. In the pre-Internet era this led to a grouping of promenaders in front of the shop window that blocked the pedestrian walkway. The Prussian police showed up at the scene and demanded that the retailer dress his mannequins properly, and hence they considered him a ‘Zweckveranlasser’.

This more than 100 year-old principle can be transferred to the virtual use of property: if the use of virtual location based content – which is legitimate on its own – sets the ground for third parties to use a given property in real world in a illegitimate manner, the property owner should be able to claim cease and desist from the provider of the digital content. This means I could end up with a Pokémon free apartment.

In a world where smartphones are ubiquitous, virtual reality is simply another layer covering our real lives. Simply following trends, like the Internet of Things location-based information and content is becoming more and more relevant.

Google Street View has been mentioned above. 4square has already conquered many parts of digital/physical space. Snapchat recently introduced geo-snaps. The outburst of Pokémon GO was only a natural evolution of leveraging mechanisms of location based content. It will be important for us, in an increasingly digitized society, to find a framework where these technologies can prove to have some benefit.

And yet again, as long as I don’t find any evidence of Pokémon ravaging through my apartment when I’m not there, it can’t be too much of an issue. Unless I meet Morpheus tomorrow asking me to choose between the blue pill and the red one...

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