Roy Keidar (special counsel), Nimrod Vromen (partner), and Ahuva Goldstand (intern) of Israeli law firm Yigal Arnon & Co. examine how the law is keeping pace with emerging virtual reality (VR), augmented reality (AR), and mixed reality (MR) technologies.
As every law student knows, there can be no legal or criminal ramifications to mere thoughts. We are free to consider, ruminate, or fantasize to our heart’s desire about committing various wrong-doings with absolutely no legal consequences. As long as we don’t turn these thoughts into action, it’s not a matter for the law.
Let’s take this premise one step further. Say we express our private thoughts using technology, whilst still keeping them “private.” For example, what if in the confines of a virtual reality (VR) game, we were to vent all of our pent-up rage at an avatar representing a boss or manager—sort of what we can see in the HBO’s popular series, Westworld. From a legal standpoint, as long as these violent intentions do not transcend into the real world, there is no legal (criminal or tort) liability. In other words, if retained within our own private world, even though expressed virtually, these will likely be legally categorized as non-actionable, private thoughts, like so many rants scribbled into a personal diary.
Now, what would the legal consequences be if an action carried out in the virtual world had very real, albeit unintentional, implications in the physical world? Complicating things further, what if such action was carried out not with VR, but with augmented reality (AR)? Unlike VR, AR doesn’t replace the real world with a simulated virtual one; rather it augments the real, physical world with computer-generated sensory input, like sounds or graphics. Would we still be exempt from any legal liability for such actions? Or might we unexpectedly find ourselves on the wrong side of the law?
This question is no longer a theoretical one. The evolution of VR and AR has raised new legal dilemmas both for users and product manufacturers, especially in the gaming industry. And some of these dilemmas could soon turn out to be, quite literally, game changers.
Take for example the 2016 smash-hit Pokémon Go. The game took the world by storm, attracting millions of players of all ages to partake in the massive pocket monster hunt by using their smartphones to “catch ’em all.” The app took advantage of GPS tracking devices already pre-installed on every smartphone today to locate the player’s exact geo-position. Using AR technology, the app added a fictional layer on top of the real picture generated from the phone’s camera, superimposing the image of digital Pokémons scampering around the player. Within days of launching, complaints cropped up about Pokémon-obsessed players trespassing onto private property, causing nuisances near private residences, and acting disrespectfully in sensitive locations, including the Holocaust Museum and government facilities. The Pokémon frenzy got so intense, players began risking their real-world lives, even venturing into marked-off mine fields just to catch one more.
Pokémon Go is certainly not the only example of the increasingly blurry borders between virtual and real-world actions. There is a disconcerting number of women complaining of being sexually harassed by male players in virtual chat rooms and VR games. Naturally, this harassment doesn’t consist of any physical, real-world contact. Rather, digital images of virtual women avatars played by real, physical women players, are being assaulted by male avatars being played by male players. Unfortunately, sexual harassment has and continues to be a persistent problem in online gaming communities. But whereas previously limited to verbal or visual messages, now, with VR technology becoming even more immersive, many feel that virtual abuse is beginning to feel just as real as physical assault.
Whether it’s a matter of criminal law or torts, the responsibility of players seems pretty straightforward. Real-world laws should apply to actions taken in the virtual and augmented ones, if and when there are real-world implications. In such case, a Pokémon Go user who enters private property without permission should be held legally accountable for trespassing. The same applies to a sexual offender if such offense is proven.
A more interesting question is the responsibility of the company behind the product used in violation of the law. So far, at least two lawsuits (one of which is a class action) have been filed in US courts, alleging that the owners of Pokémon Go, Niantic, and Nintendo, are responsible for damages caused by game players. Can these companies claim that no such liability should exist considering that these illegal actions were committed by players acting on their own volition? Is the legal disclaimer, which all Pokémon Go players must consent to before downloading and using the game, sufficient to preclude any legal responsibility of the companies? These questions have yet to be decided in court, but should be taken under serious consideration going forward by companies developing VR and AG games.
The reason for such caution goes to the core of VR and AR games. One of the reasons they are so appealing is that they provide a more enhanced and immersive experience, one in which the border between the “real world” and the simulated or augmented one becomes blurred. This is not a bad thing, per se. A common reaction by people who have tried such games is a positive feeling of being deeply engrossed and involved in the game. As the graphics, audio, and the use of multi-sensor machines continue to improve, we are going to see games offering even more enhanced sensations and immersion. But this is precisely where these companies should take extra care: the more immersed the player feels, the more likely that the lines between what happens in the virtual world (i.e. catching Pokémon) and what’s prohibited in the real world (i.e. entering private property while catching a Pokémon) would become obscured, potentially causing wide-spread legal infractions and subsequent legal actions.
This concern applies as much to large gaming companies as it does to young startups taking their first steps in the gaming world. It’s not uncommon to see promising entrepreneurs with great ideas ultimately fail because their product had serious legal and regulatory burdens which were insufficiently considered at the early product-design stages, when there was less at stake and when meaningful preventative steps could have been taken to overcome or even avoid such hurdles altogether.
Let’s return to Pokémon Go to illustrate this point. One possible solution to the trespassing and nuisance issue would be to provide the option of opting out of including one’s GPS location in the game, allowing people to control whether or not their property is included in the scope of the game’s borders. Then, if it so happened that there was a Poke-stop station placed on your property, attracting multitudes of Pokemon-hunting players to your doorstep, you as a landowner could request to have the geo-tag on your property removed from the game, and this would delete it off the game’s map. This seems like a legally reasonable solution. However, for such an option to exist, it would need to be integrated into the product at early stages of development and design, thus allowing for smooth and easy post-launch modifications without jeopardizing the functionality of the game or the enjoyment of the players.
Indeed, the complexities of the above analysis especially when limited to the virtual reality world (a world in which physical damages will be hard to identify or quantify), may ultimately lead to the conclusion that our current legal paradigms, be it civil or criminal, are ill-equipped at their core to deal with the new world order that will reign inside the virtual medium. The exciting thing about that, is that we may find ourselves legislating from scratch the do’s and don’ts of that other world. In the meantime, game developers may often find that legal solutions are not particularly difficult to implement if considered early on. Although focused on the virtual layers, game designers have much to gain from thinking about the additional layer of legal considerations during the critical early stages of development.