Legal Disclaimers and Pokémon GO, Part 1

So I just read an article from #MetroNewsCanada. Here's a quote:

Since it’s release in the U.S. and Australia last week, hundreds of Calgarians have found a work-around (that we can’t legally explain here) to download the mobile app and begin hunting in popular areas like Kensington or the Bow River.

Wait... what? They can't legally explain it? What exactly is the relevant law here? Was it the Nintendo Media Non-Disclosure Act of 2015 (aka the Gotta-hide-'em-all act)?

I get that they might not want to publish a technical how-to for assorted reasons (it's likely long, dry, and not pertinent to most of their readers), but why are they blaming the legal system?

IANAL, but I'm pretty sure I can describe illegal things in public. That includes such facts as "breaking someone's windshield with a sledgehammer is vandalism", without people misinterpreting my level of detail as instructions. There might be a few exceptions - court-ordered publication bans for example, but I'm pretty sure Nintendo's terms of service don't qualify.

Maybe - maybe - you could argue that Metro News was under some kind of contract not to release the information (in which case, they need better lawyers), but then they say this in the last paragraph:

"The game isn’t officially out in Canada yet, but there are plans to roll it out eventually. Until then, players are going online to find a work-around at get the game."

Ok, got it - if you want to play the game, go online and ask how. Thanks for the explanation that you're not legally allowed to give.

Murder is illegal. Somebody violating the terms of service of a video game by using a proxy server to download it (I imagine - haven't checked) is also illegal, technically. I wish we had a term to differentiate between those extremes. I guess we have summary conviction offenses (roughly what an American would call a misdemeanor) here, but even that seems harsh compared to this level of "crime". Is there a term even more damp and milquetoast? Maybe the Latin phrase for "you've got to be kidding me".

I'm really curious what prompted them to write that disclaimer.

As to Pokémon GO, not me thing. But hey, if it sounds like fun, have at 'er. Just watch you don't get hit by a car, and be mindful that there are people around you not playing the game.

Legal Disclaimers and Pokémon GO, Part 2

So hislittlekitty saw the link to the previous entry and confessed she thought it would be an entirely different post. Namely one about Nintendo covering their rear-end legally against stupid people running into traffic or trespassing.

That made me think about the Attractive Nuisance Doctrine. Put simply, a land owner has a responsibility to prevent children from hurting themselves on their property. i.e. take efforts to cover swimming pools, prevent access to trampolines, make sure they're not playing in the derelict cars on the lawn, etc. You can't just put a sign up, because some kids can't read. Plus, there's plenty of kids who will see "dangerous, no trespassing" as a dare. You need to do something concrete.

Of course, the doctrine only applies to land-owners, and Nintendo doesn't own the land some kid is trespassing on. That seems pretty clear-cut. Now let's say your property is dangerous, but isn't particularly attractive in the sense the doctrine means. But then Nintendo's servers virtually add Pokémon to your property and someone gets hurt trying to catch it. As a land-owner who might not even play video games, you're completely unaware of the attractive nuisance that a third-party has imposed on you. If you get sued by the family of a kid who got killed on your property because they were hunting Pokémon, can you in turn sue Nintendo? After all, everything was fine until they stirred things up.

I had a look at the Terms of Use. It seems to mostly be concerned with protecting their intellectual property. There's basically nothing in there (to my quick scan) restricting age of users (in fact, it has a mechanism for allowing children to play), or obeying local community standards (the community standards they address is the game's virtual community). Even if they did have such a disclaimer, I'd argue it's the equivalent of a simple "no trespassing" sign - not sufficient to address the doctrine. To get around the doctrine, you have to make an effort, and that effort has to be reasonable. So what's a reasonable effort? My thoughts:

1) Train your users. Here's a quiz you need to pass before you play that shows you understand what trespassing and traffic mean. Adult users can skip the test.

2) Limit where the Pokémon are. Not within 100 meters of a freeway for example. I'm sure this is programmable. You can't hit everything, but prove to the courts that you've made an effort to at least get the low-lying fruit like airport tarmacs out of the way.

For all I know, Nintendo is doing all that. Here's hoping. Did Ingress (a game that is its sort-of predecessor, that Pokémon GO cribs from) do anything like this?

Remember, kids aren't stupid, their just kids - often times foolish and unwise, but still kids. I was a smart kid, but I still did dumb shit like ride my bike down Suicide Hill. I'd have probably done more if it weren't for fences. The Attractive Nuisance Doctrine is a good thing.

Go read this if you have questions about Pokémon GO.