The Oddish Intersection of Property Rights and Augmented Reality

July 18, 2016  |  By Jeff Villalobos

It may sound Farfetch’d, but there may be a little pocket monster lingering on your property. Yesterday, we spotted five within a ten-minute span just here in our VW office. After one Poliwhirl-wind of a week, Pokémon Go has taken the world by storm. Many business owners can’t get enough Jigglypuffs to their restaurants and shops to keep up with the mad dash of Trainers who can’t wait to catch them.

Not all landowners, however, share the same enthusiasm. There are plenty of reports of unwanted Trainers trespassing on private property. Currently, Pokéstops – hotspots for catching Pokémon – are placed at historical marks, public art installations, and other cultural landmarks. Despite some slip-ups, Niantic Labs and The Pokémon Company, the creators of Pokémon Go, have been clear that they do not want you to have uninvited Pikachus and Pikachu chasers on your property. They have also encouraged users to report Pokéstops located on private property.

From a PR standpoint, Niantic and The Pokémon Company are probably working nonstop to keep their users and the general public happy, but in addition to complex issues involving trespassing and privacy concerns, their popular game has brought attention to another complicated question: Who owns the virtual space around you?

Property rights are generally referred to as a bundle of sticks. In most states, you can unbundle your rights to your groundwater, your surface water, your mineral rights, and your air rights. Pokémon Go, and similar apps, have now forced us to consider a new right that may be tied to property: your virtual rights.

Virtual Rights

Pokémon Go has presented just one way that we can view the virtual space around us. Through the app, you can point your camera on your tablet or phone and see a Squirtle who is sitting at a fixed location in a virtual world. Soon, we will be able to experience fixed virtual spaces with virtual reality headsets and other apps similar to Pokémon Go.

Now, imagine if instead of seeing a Weedle when you pointed your camera, you saw a billboard that wasn’t physically there. Nobody would argue that they have a right to place a physical billboard on your property without your permission, but what about a virtual one? What if you could immediately view bad reviews before you walked into a business simply by pointing your camera?

Should the property owner have the right to remove those views from being tagged on a physical location? Is placing the virtual data free speech? It is difficult to conceptualize that a non-physical creation is capable of infringing on your rights to private property.

Air Rights

While we likely won’t have a definitive answer about virtual rights anytime soon, answers regarding virtual property rights may be most closely tied to air rights.

Before airplanes and skyscrapers, no one cared about who owned what above their property. In the same way we didn’t expect cartoon creatures to be sitting next to us in virtual space, we didn’t conceptualize the idea of air rights until the property’s use was affected by noisy planes flying over and buildings blocking light or a view.

The laws regarding the use of airspace varies by state, and Texas has failed to take a definitive stand on air rights. Several Texas courts, however, have adopted a reasonable use test that states an owner’s air rights only extend to the height of the property owner’s existing and effective reasonable use of the land. Therefore, if the owner is not actively using the space or planning to use it in a particular manner, there is likely no claim of right over said air.

So if a landowner is not actively claiming use of his virtual space, can a company “move in” and place whatever virtual data they wish on your land? At what point can you tell a virtual intruder to move along?

Technology has always moved faster than the law. It will probably be a long time before we have definitive answers as to what our virtual rights are on our property. For now, commercial and residential property owners will have to report unwanted Zubats to Pokémon Go. As law and technology both evolve, maybe landowners will soon be able to set up a virtual fence to keep out uninvited virtual guests.

About the Author(s)

Jeff Villalobos

Jeff is a senior attorney at Vela Wood. He focuses his practice in the areas of intellectual property, technology commercialization, privacy, advertising, and corporate transactional matters.

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