Guest Column

Who wins when AR collides with property laws?

September 21, 2018
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When does my right to free speech conflict with your right to private property?

Increasingly, augmented reality lies at that intersection – and that’s creating headaches for property owners, gamers and digital developers, not to mention police officers.

Augmented reality — or AR for short — is the blending of digital information in a real-world environment. Versions of this technology have existed for decades, especially for military uses, but popular AR applications have exploded over the last few years, from QR code-driven ads and holograms to Google Glass to virtual roller coasters.

When Pokémon Go from Niantic Labs burst onto the AR scene two years ago, it took the gaming world by storm — and surprised many property owners and police departments. The location-based mobile game sent millions of people of people tromping through city streets, parks, orchards, streams and into backyards, garages and office buildings in search of elusive — and virtual — Pokémon characters.

Niantic now faces a class-action lawsuit in several states alleging “AR-induced trespass” as strangers turned up on or near the property of plaintiffs to either catch Pokémon or use Pokémon gyms located there. The case still is winding its way through courts, with a California judge refusing to dismiss the lawsuit after noting the laws around digital trespass are unclear.

The stakes are staggering. To date, Pokémon Go revenue has approached $2 billion. With consumer-level digital eyewear just around the corner, AR and virtual reality applications are poised to take another quantum leap, and that means we need to start considering these questions.

Can an owner of something tangible — whether it’s a house, a billboard or even a person — stop me from creating an augmented layer associating digital content with that tangible thing? This question already has been analyzed from the perspective of “virtual property rights.” But I see that phrase as a misnomer.

Although AR creates the illusion that digital data occupies physical space, it’s not really there. Property law is about the right to exclude others from physical space. But an infinite number of people can each create their own AR layer superimposing digital data over the same physical space without impeding anyone else’s ability to do so, and without invading the rights of the real property owner.

Property law, therefore, doesn’t help us think accurately about the AR experience.

Rather, when my digital device recognizes a person, place or thing and is triggered to augment my view of it with digital information, the experience is much more like clicking a hyperlink on a web page — except that the “web page” is the physical world around me, and the hyperlinked “text” is the person, place or thing that triggered the display.

And just as with a web page, there is someone responsible for writing the short piece of link code and for choosing to associate it with that person, place or thing in the program being run by the digital eyewear. I want to consider the possibility this coder’s choice to associate digital content with a tangible object is itself speech protected by the First Amendment‘s prohibition of laws that “abridg[e] … the freedom of speech, or of the press.”

Visions of an AR-infused world have long included scenes in which one can walk down the street wearing AR eyewear and seeing digital objects blended into the real world just by looking around. Exactly like with two-dimensional hyperlinks, however, what a user sees through AR eyewear when looking at a physical “trigger” depends entirely on the coder’s choice of digital information with which to “link” it.

Some projects have superimposed digital content onto public murals in a form of augmented graffiti. But this is why the courts have never applied the First Amendment’s command that there be “no law” abridging the freedom of speech in an absolutely literal way.

The law has continued to regulate expressive activity that goes beyond the bounds of what we recognize as “free speech,” including defamation, false advertising, criminal conspiracy and infringement of intellectual property rights. The same legal boundaries that have governed speech in pamphlets and Twitter feeds will continue to apply in the augmented space.

So to answer the question of whether the First Amendment will protect the right to augment reality, the answer must be “yes, to the same extent that it protects speech in any other format.” In order to make sure we use the right legal principles and afford the proper level of protection to augmented content, it will be important to think clearly about that content and recognize it for what it is: speech.

AR will influence society as fundamentally as the internet itself has done, and such a powerful medium cannot help but radically affect the laws and norms that govern society.

Brian D. Wassom is a partner with the law firm Warner Norcross + Judd who litigates disputes and counsels clients on AR, First Amendment, intellectual property and other commercial matters. He can be reached at bwassom@wnj.com.

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