by 
XR Talks is a weekly series that features the best presentations and educational videos from the XR universe. It includes embedded video, as well as narrative analysis and top takeaways.
Last year a class-action suit was filed by property-owners across several states, seeking damages from trespassing. These trespassers had one thing in common: They were all playing Pokemon Go. But the interesting part: the defendant in the suit is the game maker… Niantic.
“The plaintiffs are actually alleging that the Niantic committed a form of ‘virtual trespassing,’ said Foley & Lardner Attorney Lucas Silva at January’s ARIA Conference. “The theory being that Niantic can control where these elements are placed and [they] have GPS coordinates.”
This may seem silly, Silva admits, but it’s important. At AR’s early stages of adoption and cultural assimilation, case law will be impactful in setting precedents. For a sector that’s already a bit fragile in its infancy, unforeseen legal impediments could stunt its growth.
“The court had a chance to dismiss the case early on and did not, suggesting that maybe this claim does have a little more legs than some people would have thought,” he said. “I think this is a case that has potentially far-reaching implications for augmented reality.”
Some of these issues also drive towards important questions like who “owns” AR and digital real estate. We raised this question recently and it could build up to something more impactful. And It will be particularly contentious wherever money is being made, such as AR in retail shopping.
“If you are in a Lowe’s store and you’re using a wayfinding app, what if the owner of that store and presumably Lowe’s rents space from the owner of a strip mall?” Silva posed. “Does that strip mall owner potentially have to sign off on the placement of these virtual elements.”
Another area of AR where money — and thus legal attention — will accumulate is advertising. Though we’re skeptical on AR ads’ imminent arrival, they will materialize eventually. And like retail, questions will face courts such as ownership at the intersection of physical and digital.
This could be ad overlays on private property, or even other ads, says Silva. And until specific cases determine precedent, this could fall under native advertising laws. These emerged with the rise of content marketing, where the FTC forces advertisers to disclose paid placement.
Speaking of legacy technologies and laws, Klaris Law media and entertainment lawyer, Alexia Bedat advises AR developers to follow existing guidelines for collecting data. For example, only collect what you ask and get explicit permission for (good timing for Facebook’s current mess).
That gets more sensitive for anything to do with location data, which will be a key component of AR products and business models, per Silva’s examples. And it gets even more controversial with biometric data, like fitness tracking, which will likewise be central to lots of AR products.
“Why are we bringing this up again now?” asked Bedat. “Because of biometric data and the increased attention that collection of it is getting. What we’re talking about here are eye scans fingerprints, voice prints, hand recognition and facial recognition.”
Whether its biometrics, ads or private property, AR’s legal governance will be a moving target as case law sets precedent in coming years. Meanwhile, decisions could defer to legal precedents that rule physical property ownership. It is after all nine tenths of the law, they say.
See below for the full video, including a deeper dive on other legal issues like copyright protection of digital assets in AR.
For a deeper dive on AR & VR insights, subscribe to ARtillry Intelligence Briefings, and sign up for the free ARtillry Weekly newsletter.
Disclosure: ARtillry has no financial stake in the companies mentioned in this post, nor received payment for its production. Disclosure and ethics policy can be seen here.