Legal Disclaimers and Pokémon GO, Part 2
Jul. 12th, 2016 01:57 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
jamesqSo ![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
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.
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.
