Vanderbilt Journal of Entertainment & Technology Law Vanderbilt Journal of Entertainment & Technology Law
Volume 19
Issue 4
Issue 4 - Summer 2017
Article 6
2017
Augmenting Property Law: Applying the Right to Exclude in the Augmenting Property Law: Applying the Right to Exclude in the
Augmented Reality Universe Augmented Reality Universe
Samuel Mallick
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Recommended Citation Recommended Citation
Samuel Mallick, Augmenting Property Law: Applying the Right to Exclude in the Augmented Reality
Universe, 19
Vanderbilt Journal of Entertainment and Technology Law
1057 (2020)
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol19/iss4/6
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Augmenting
Property
Law:
Applying
the
Right
to
Exclude
in
the
Augmented
Reality
Universe
ABSTRACT
This
Note
considers
whether
and
to
what
extent
the
property
right
to
exclude
applies
to
virtual
space
in
the
augmented
reality
(AR)
universe.
It
provides
an
overview
of
AR's
development
and
uses,
as
well
as
a
review
of
property
law
concerning
the
right
to
exclude.
By
considering
the
consequences
of
previously
proposed
regulatory
schemes
in
light
of
four
hypothetical
AR
applications,
this
Note
demonstrates
that
these
solutions
do
not
adequately
balance
the
societal
benefit
achievable
through
free
development
of
AR
applications
with
landowners'
absolute
rights
to
exclude
others
from
their
property.
This
Note
proposes
adoption
of
an
adjusted
"open-range"
common
law
solution
to
the
legal
challenges
AR
presents.
Under
this
solution,
AR
developers
would
be
free
to
place
virtual intrusions
anywhere
they
like,
but
landowners
would
be
able
to
give
notice
to
developers
demanding
virtual
intrusions
be
removed
from
their
property.
TABLE
OF
CONTENTS
I.
A
PRIMER
ON
AUGMENTED
REALITY
......................
1059
A.
The
Basics
of
Augmented
Reality
...................
1059
B.
Pokimon
GO..............................
1062
C.
The
Future
of
AR
................................
1064
D.
Present
Litigation
..........................
.....
1065
II.
BACKGROUND
ON
THE
PROPERTY
RIGHT
TO
EXCLUDE
............
1066
A.
Models
for
the
Right
to
Exclude
Physical
Intrusions.......
1068
1.
Traditional
Trespass
.............................
1068
2.
Access
Land
.................................
1070
3.
Open
Range.................................
1071
B.
Private
Nuisance
and
the
Right
to
Exclude
Nonphysical
Invasions
...............................
1072
C.
Current
Governance
of
the
Electronic
and
Virtual
Worlds
............................
1072
1057
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[Vol.
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III.
ANALYSIS.............
.....................
......
1073
A.
Four
Hypothetical
AR
Applications
.................
1073
B.
Common
Law
Property
Doctrines
Do
Not
Fit
an
AR
Scheme
......................................
1074
C.
Current
Proposed
Solutions
for
AR
Regulation
Are
Inadequate
.....................................
1077
1.
Class
Actions
.......................
.............
1077
2.
State
Statutes...............................
1078
3.
Virtual
"No-Fly"
Zones...
.....................
1079
IV.
SOLUTION
..................................
.......
1080
V.
CONCLUSION
......................................
1083
Imagine
twenty
years
from
now,
you
own
a
plot
of
land
with
a
nice
house,
a
white
picket
fence,
and
a
big
front
yard.
To
your
neighbor
walking
her
dog
or
to a
visitor
coming
to
say
hello,
your
property
looks
like
an
ordinary
home.
But
when
someone
views
your
home
through
the
camera
of
a
smartphone,
a
different
image
appears.
The
house
and
picket
fence
are
covered
with
graffiti,
advertisements,
lewd
pictures,
and information
about
the
property
and
its
residents.
The
lawn
is
littered
with
boxes
of
different
sizes
and
colors.
Zombies,
fairies,
and
other
fantastical
creatures
run
amok
in
the
yard.
None
of
these
intrusions
exist
in
the
physical
world,
but
through
augmented
reality
(AR)
technology,
these
virtual
images
seem
to
inhabit
your
property.
Their
presence
has
the
potential
to
affect
both
your
property's
value
and
your
enjoyment
of
it.
AR
is
continually
bringing
the
virtual
and
physical
worlds
closer
by
tying
virtual
images
to
real,
physical
locations
that
users
can
visit.'
While
AR
is
not
yet
a
recognizable,
ubiquitous
facet
of
everyday
life,
it
is
already
prevalent,
and
its
applications
are
growing.
2
As
the
real
and
virtual
worlds
begin
to
collide,
the
legal
system
will
have
to
resolve
inevitable
disputes
resulting
from
conflicts
between
1.
See
Om
Malik,
Pokimon
GO
Will
Make
You
Crave
Augmented
Reality,
NEW
YORKER
(July
12,
2016),
http://www.newyorker.com/techlelements/pokemon-go-will-make-you-crave-
augmented-reality
[https://perma.cc/3PCF-8Z4N].
2.
See
Paul
Blake
&
Ronnie
Polidoro,
Exclusive:
Why
Apple
CEO
Tim
Cook
Prefers
Augmented Reality
over
Virtual
Reality,
ABC
NEWS
(Sept.
14,
2016
7:23
AM),
http://abcnews.go.com/Technology/exclusive-apple-ceo-tim-cook-prefers-augmented-
reality/story?id=42064913
[https://perma.cc/UXZ9-KLSK];
Dena
Cassella,
What
Is
Augmented
Realty
(AR):
Augmented
Reality
Defined,
iPhone
Augmented
Apps
and
Games
and
More,
DIGITAL
TRENDS
(Nov.
3,
2009),
http://www.digitaltrends.com/features/what-is-augmented-reality-iphone-
apps-games-flash-yelp-android-ar-software-and-more
[https://perma.cc/H9JK-GLLM].
AUGMENTING
PROPERTY
LAW
landowners
and
users
or
developers
of
AR
technologies.
3
Landowners
have
already
filed
lawsuits
in
response
to
the
alleged
tortious
conduct
of
AR
users
and
developers.
4
The
legal
system
will
have
to
respond
to
the
question
of
whether
AR
application
developers
can
create
virtual
intrusions
in
virtual
space
that
are
tied
to
privately
owned
property.
6
This
Note
explores
this
question
and
advocates
for
the
application
of
the
fundamental
property
right
to
exclude
in
AR
applications,
even
though
they
do
not
look
like
traditional,
physical
invasions.
Part
I
explains
AR,
discusses
current
applications
of
the
technology,
and
considers
how
it
might
progress
in
the
future.
Part
II
analyzes
the
current
legal
application
of
the
property
right
to
exclude,
including
trespass,
nuisance,
and
existing
attempts
to
regulate
virtual
and
electronic
"spaces."
Part
III
discusses
why
property
law as
it
stands
is
insufficient
to
cope
with
AR,
presents
existing
proposed
solutions,
and
explores
why
those
solutions
are
inadequate.
Part
IV
proposes
that
courts
reject
the
strictures
of
current
modes
of
exclusion,
look
to policy
considerations
underpinning
property
law to
identify
an
appropriate
solution,
and
adjust
the
common
law
accordingly.
This
Note
argues
that
courts
can
best
balance
encouraging
development
of
potentially
useful
AR
technology
with
protecting
fundamental
property
rights
by
adapting
the
"open
range"
model
of
the
right
to
exclude.
I.
A
PRIMER
ON
AUGMENTED
REALITY
A.
The
Basics
of
Augmented
Reality
Augmented
reality
is
"an
enhanced
version
of
reality
created
by
the
use
of
technology
to
overlay
digital
information
on
an
image
of
something
being
viewed
through
a device
(such
as
a
smartphone
camera)."
6
Put
differently,
AR
uses
technology
to
make
virtual
presences
appear
as
if
they
exist
in
the
physical
world,
superimposing
3.
See
Alex
Hern,
Pokimon
Go: Who
Owns
the
Virtual
Space
Around
Your
Home?,
GUARDIAN
(July
13,
2016,
9:46
AM),
https://www.theguardian.com/technology/2016/jul/13
/pokemon-virtual-space-home
[https://perma.cc/5DLT-YFLU].
4.
See
Complaint
25-28,
Pokemon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300
(N.D.
Cal.
2016)
(No.
46).
5.
See
Yamri
Taddese,
Focus:
Virtual
Trespassing
Result
of
Pokemon
Go?,
LAW
TIMES,
(Aug.
1,
2016,
9:00
AM),
http://www.lawtimesnews.com/201608015557/headline-news/virtual-
trespassing-result-of-pokemon-go
[https://perma.cc/MJ25-2LRN];
Hern,
supra
note
3.
6.
Augmented
Reality,
MERRIAM-WEBSTER,
http://www.merriam-webster.com
/dictionary/augmented%20reality
[https://perma.cc/S86N-VZUN]
(last
visited
Mar.
7,
2017).
1059
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VAND.
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ENT.
&
TECH.
LAW
virtual
graphics
onto
the
real
world
through
use
of
a
device's
screen.
7
This
Note
refers
to
such
virtual
presences
as
"on"
property.
This
characterization
is
not
technically
correct,
as
these
images
do
not
literally
inhabit
the
physical
world,
but
it
is
a
convenient
shorthand
description
of
what
appears
to
be
happening.
AR
is
distinct
from
virtual
reality
(VR),
which
projects
solely
digital
images,
replacing
the
user's
surrounding
environment.
8
AR
incorporates
digital
images
into
the
real
world,
overlaying
them
onto
a
user's
physical
surroundings.
9
In
an
interview
with
ABC
News,
Tim
Cook,
CEO
of
leading
technology
company
Apple,
touted
AR
as
having
more
commercial
potential
than
VR
over
time.
10
Cook
stated
that
AR
presents
"the
capability
for
both
of
us
to
sit and
be
very
present,
talking
to
each
other,
but
also
have
other
things-visually-for
both
of
us
to
see.""
This
technology
supplements,
rather
than
replaces,
the
physical
world
with
virtual
presences.
AR
applications
depend
on
the
real
world
for
viability.
One
of
the
most
common
uses
of
AR
is
in
television
broadcasts
of
football games.
12
Since
1998,
broadcasters
have
used
AR
to
overlay
a
yellow
line, developed
by
Sportvision
and
called
the
1st
and
Ten
Line,
onto
video
of
a
football
field
to
allow
viewers
to
easily discern
the
location
of
the
real-world
first
down
marker,
which
may
not
be
easily
visible
to
television
viewers.
13
This
use may
not
be
immediately
recognizable
as
AR,
but
it
is
both
prevalent
and
longstanding.14
AR
was
first
developed
in
1968,
when
Ivan
Sutherland
created
a
head-mounted
display
system,
used
for
both
VR
and
AR
that
displayed
wireframe
drawings.
15
In
1990,
Tom
Caudell,
a
researcher
7.
See
Lily
Prasuethsut,
Everything
You
Need
to
Know
About
Augmented
Reality,
Then,
Now
&
Next,
WAREABLE,
(July
30,
2016),
http://www.wareable.comlar/everything-you-
need-to-know-about-augmented-reality
[https://perma.cc/6J2P-5DFN].
8.
See
id.
9.
See
Blake
&
Polidoro,
supra
note
2.
10.
See
id.
11.
Id.
12.
Dennis
Williams,
Did
Sports Pave
the
Way
for
Augmented
Reality?,
AUGMENT
(July
7,
2016),
http://www.augment.com/blog/sports-pave-way-augmented-reality/
[https://perma.cc
/P4NF-NQVC].
13.
Id.
14.
See
id.
("In
today's
age,
the
1st
&
Ten
Line
has
become
a
standard
in every
football
telecast
and
a
worldwide
aid
to
audiences
and broadcasters
alike.").
15.
Kangdon
Lee,
Augmented
Reality
in
Education
and
Training,
56
TECHTRENDS
13,
13
(Mar./Apr.
2012),
http://www.academia.edu1l429676/AugmentedRealityin_Education
_and_Training
[https://perma.cc/6P83-8S6S];
Infographic:
The
History
of
Augmented
Reality,
AUGMENT
(May
12,
2016),
http://www.augment.com/blog/infographic-lengthy-history-augmented
-reality/
[https://perma.ccIF6SG-ZVSK].
1060
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AUGMENTING
PROPERTY
LAW
for
Boeing,
coined
the
term
"augmented
reality."
16
Caudell,
in
introducing
the
term,
described
the
technology:
The
general
concept
is
to
provide
a
"see-thru"
virtual
reality
goggle
to
the
factory
worker,
and
to
use
this
device
to
augment
the
worker's
visual
field
with
useful
and
dynamically
changing
information..
. .
This
technology
is
used
to
"augment"
the
visual
field
of
the
user
with
information
necessary
in
the
performance
of
the
current
task,
and
therefore
we
refer
to
the
technology
as
"augmented
reality"
(AR).17
Head-mounted
displays
continue
to
be
at
the
forefront
of
AR
development,
with
major
tech
companies
Google
and
Microsoft
both
developing
such
hardware.
18
Google
unveiled
its
head-mounted
display,
Google
Glass,
in
2012,
attracting
national
media
attention.
1
9
Google
Glass
was
originally
designed
to
look
like
a
pair
of
glasses,
but
instead
of
prescription
lenses,
the
frames
have
a
built-in
camera,
a
touchpad
running
along
the
wearer's
temple,
and
a
display
screen
allowing
users
to see
a
series
of
virtual
cards,
which
display
information
like
the
weather
or
text
messages
the
wearer
has
received.
20
The
hardware,
in
part,
functions
like
a
smartphone,
but
allows
users
to
access
information,
read
messages,
and
record
videos
without
taking
a
device
out
of
their
pockets
and
looking
down
at
a
screen.
2
1
Google
Glass
was
never
widely
available
on
the
market-its
use
was
restricted
to
Google's
Glass
Explorers
program
(a
select
few
users
in
a
controlled
pilot
program
who
paid
$1,500
to
become
early
adopters)
and
publicized
use
by
various
celebrities.
22
In
January
2015,
Google
closed
its
Glass
Explorers
program
and
announced
that
new
versions
of
Google
Glass
were
forthcoming,
with
no
information
about
a
timeline
for
future
releases
or
clues
as
to
what
would
be
16.
Lee,
supra
note
15,
at
13;
Infographic:
The
History
of
Augmented
Reality,
supra
note
15;
see
Augmented Reality,
OXFORD
ENG.
DICTIONARY
(Draft
additions
Dec.
2005),
http://www.oed.com/viewlEntry/13081
[https://perma.cclW7EU-KYJH].
17.
T.P.
Caudell
&
D.W.
Mizell,
Augmented
Reality:
An
Application
of
Heads-Up
Display
Technology
to
Manual
Manufacturing
Processes,
Proc.
25th
Hawaii
Int'l
Conf.
Sys.
Sci.
II.
659,
660
(Jan.
1992),
http://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=183317
[https://perma.cc/7FD4-XFSK].
18.
Prasuethsut,
supra
note
7.
19.
See Nick
Bilton,
Why
Google
Glass
Broke,
N.Y.
TIMES
(Feb.
4,
2015),
http://www.nytimes.com/2015/02/05/style/why-google-glass-broke.html?smid=nytcore
-iphone-share&smprod=nytcore-iphone&r=
1
[https://perma.cc/JK9C-6SVW].
20.
Marques
Brownlee,
Google
Glass
How-To:
Getting
Started,
YOUTUBE
(Apr.
30,
2013),
https://www.youtube.com/watch?v=4EvNxWhskf8
[https://perma.cclKD55-DX5N];
Joshua
Topolsky,
I
Used
Google
Glass:
The
Future,
but
with
Monthly
Updates,
VERGE
(Feb.
22,
2013),
http://www.theverge.com/2013/2/22/4013406/i-used-google-glass-its-the-future-with
-monthly-updates
[https://perma.cclP8EP-JMEP].
21.
See
Topolsky,
supra
note
20.
22.
See
Bilton,
supra
note
19.
1061
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VAND.
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changed
in
subsequent
versions.
23
A
2015
filing
with
the
Federal
Communications
Commission
shows
that
a
new
version
of
Google
Glass
is
in
the
works
and
provides
photographs
of
the
redesigned
model.
2
4
Microsoft's
head-mounted
display,
HoloLens,
is
currently
available
for
$3,000
per
unit,
but
is
only
available
to
application
developers,
who
Microsoft
hopes
will
create
uses
for
the
technology.
25
While
Google
Glass
allows
wearers
to
see
and
interact
with
a
floating
display
that
essentially
duplicates
a
smartphone
screen,
HoloLens
allows
wearers
to
see
three-dimensional
holograms,
and
a
feature
known
as
"pinning"
will
allow
the
hologram
to
remain
in
one
place
while
users
walk
around
it.26
Head-mounted
displays
are
expensive
and
not
yet
readily
accessible-the
exclusivity
of
Google
Glass
is
just
one
example.
27
Microsoft
HoloLens,
while
obtainable,
is
still
only
available
to
developers.
28
Although
head-mounted
displays
are
not
yet
mainstream
technologies,
AR
is
accessible
through
a
more
ubiquitous
technological
advancement:
the
smartphone.29
B.
Pokdmon
GO
AR
technology
made
headlines
again
in
Summer
2016
with
the
release
of
the
AR
smartphone
game
Pokimon
GO,
which
debuted
on
July
6,
2016,
and
within
a
month,
had
21
million
users.
30
Pok6mon
GO
is
a
mobile
application
developed
by
Niantic,
Inc.
("Niantic")
that
23.
Google
Glass,
We're
Graduating
from
Google[x]
Labs,
GOOGLE+
(Jan.
15,
2015),
https://plus.google.com/+GoogleGlass/posts/9uiwXY42tvc
[https://perma.cc/KQD2-6QUG].
24.
See
generally
Lisa
Eadicicco,
See
the
New
Version
of
Google's
Wildest
Product,
TIME
(Dec.
29,
2015),
http://time.com/4163067/google-glass-2-photos-2015/
[https://perma.cc/SAC3-
RG4Q]
(referencing
Google's
application
to
the
Federal
Communications
Commission
with
a
link
to
photos
of
the
new
Google
Glass).
25.
Microsoft
HoloLens Development
Edition,
MICROSOFT,
https://www.microsoftstore
.com/store/msusa/enUS/pdp/Microsoft-HoloLens-Development-Edition/productlD.5061263800
[https://perma.cc/E2W5-E9NL]
(last
visited
Mar.
7,
2017)
[hereinafter
MICROSoFrT].
26.
Sophie
Charara,
Microsoft
HoloLens:
Everything
You
Need
to
Know
About
the
$3,000
AR
Headset,
WAREABLE
(Aug.
2,
2016),
https://www.wareable.com/microsoft/Microsoft
-hololens-everything-you-need-to-know-about-the-futuristic-ar-headset-735
[https://perma.cc/9HT7-YZP6].
27.
See
Bilton,
supra
note
19.
28.
See
MICROSOFIT,
supra
note
25.
29.
See Nick Wingfield
&
Mike
Isaac,
Pokimon
Go
Brings
Augmented
Reality
to
a
Mass
Audience,
N.Y.
TIMES
(July
11,
2016),
http://www.nytimes.com/2016/07/12/technology/pokemon
-go-brings-augmented-reality-to-a-mass-audience.html?_r=0
[https://perma.cc/6ZH6-HQWX].
30.
See
Georgia
Perry,
Imagination
in
the
Augmented-Reality
Age,
ATLANTIC
(Aug.
4,
2016),
http://www.theatlantic.comleducation/archive/2016/08/play-in-the-augmented-reality-age
/494597/ [https://perma.cc/7CBQ-DBE7].
1062
[Vol.
YJX:4:1057
AUGMENTING
PROPERTY
LAW
allows
users
to
take
on
the
role
of
a
"Pok6mon
Trainer"
and
attempt
to
capture
virtual
"Pok6mon"
that
appear,
through
use
of
AR
and
a
smartphone
camera,
to
exist
in
the
physical
world.
31
Pok6mon
are
fictional
animal-like
creatures
that
game
players
attempt
to
capture
and
use
in
battles.
32
Previous
Pok6mon
video
games
were
role-playing
games
in
which
a
player
controlled
a
character
appearing
on
a
screen
in
a
predetermined
story
in
a
fictional
world,
navigating
maps
created
by
the
games'
developers
in
a
quest
to
capture
Pok6mon
and
battle
against
other
characters.
33
In
Pok6mon
GO,
however,
the
map
is
the
physical
world,
and
instead
of
guiding
a
character
through
a
predetermined
story,
the
user
walks
through
the
physical
world
attempting
to
capture
Pok6mon.
34
These
Pok6mon
can
only
be
found
when
a
user
goes
to a
real
location
corresponding
with
the
placement
of
Pokimon
on
the
map
by
the
game's
developers.
35
Once
at
that
location,
users
can
engage
their
smartphones'
cameras
and
it
will
appear
as
if
Pok6mon
exist
among
their
real-world
surroundings.
36
The
game
also
features
gyms,
which
are
"locations"
that
allow
users
to
compete
against
each
other,
and
Pok6stops,
where
users
can
collect
items
to
help
them
in
their
quests.
37
These
gyms
and
Pok6stops
are
often
real-world
points
of
interest
(for
example,
the
White
House
is
a
gym).
3
8
They
are
geographic
coordinates
housed
on
Niantic's
servers
and
represented
to
users
on
the
"stylised
[sic]
Google
Map
of
the
area
31.
See
Matt
Peckham,
Review:
'Pokimon
Go'
Is
an
Ingenious
Idea
with
Too
Many
Rough
Edges,
TIME
(July
12,
2016),
http://time.com/4401279/pokemon-go-review/
[https://perma.cc[BZX8-4A4S].
32.
Dave
Thier,
What
Is
'Pokimon
GO,'
and
Why
Is
Everybody
Talking
About
It?,
FORBES
(July
11,
2016),
http://www.forbes.com/sites/
davidthier/2016/07/1
1/facebook-twitter-social-what-is-pokemon-go-and-why-is-everybody-talking
-about-it/#229e2b9c21c7
[https://perma.cc/9YSH-4UDF].
The
term
"Pok6mon"
comes
from
the
phrase
"Pocket
Monsters"-users
capture
the
game's
fictional
world
in
balls,
which
are
small
enough
to
be
kept
in
a pocket.
Id.
33.
See,
e.g.,
Pokimon
Red
Version
and
Pokimon
Blue
Version,
POKtMON,
http://www.pokemon.com/us/pokemon-video-games/pokemon-red-version-and-pokemon-blue-
version/
[https://perma.ccl36UW-X5QD]
(last
visited
Feb.
18,
2017).
34.
See
Yuji
Nakamura,
A
Beginner's
Guide
to
Pokemon
GO,
BLOOMBERG
(July
11,
2016),
https://www.bloomberg.com/news/articles/2016-07-11/what-is-pokemon-go-a-beginner-s-
guide-to-the-new-app
[https://perma.cclHQW3-JHEC].
35.
See
Thier,
supra
note
32.
36.
See
id.
37.
See
Peckham,
supra
note
31.
38.
See
Clem
Bastow,
From
Pokistops
to
Pikachu:
Everything
You
Need
to
Know
About
Pokimon
Go,
GUARDIAN
(July
11,
2016),
https://www.theguardian.com
/technology/2016/jul/11/from-pokestops-to-pikachu-everything-you-need-to-know-about-pokemon
-go
[https://perma.cc/8266-5ELZ];
Wingfield
&
Isaac,
supra
note
29.
1063
2017]
VAND.
J.
ENT.
&
TECH.
LAW
surrounding
the
player,"
which
is
simply
a
virtual
map
with
Pok6mon
GO's
information
animated
onto
it.39
Proponents
of
the
game
praise
the
way
it
encourages
users
to
get
outside,
exercise,
and
interact
with
the
world
around
them.
40
Critics
of
the
game
disfavor
the
placement
of
Pok6stops
in
locations
such
as
the
United
States
Holocaust
Memorial
Museum,
which
prompted
the
museum
to
complain.
4
1
At
its
core,
AR
is
simply
the
projection
of
virtual
images
onto
real-world
surroundings.
42
Within
this
definition,
however,
there
are
subcategories
of
AR,
including
location-based
AR.
4 3
Pok6mon
GO
uses
location-based
AR
by
basing
its
game
on
a
real-world
map.
4 4
Not
all
AR
technologies
tie
virtual
presences
to
physical
locations
in
this
way,
but
because
of
the
new
and
compelling
legal
questions
it
raises,
this
Note
focuses
only
on
location-based
AR
and
uses
the
term
"AR"
to
refer
to
such
applications.
45
C.
The
Future
of
AR
Pok6mon
GO's
digital
map
could
form
the
basis
for
multiple
future
applications.
4
6
In
fact,
Pok6mon
GO
is
not
Niantic's
first
application-the
company
previously
developed
a
game
called
Ingress,
built
around
a
digital
map.
4 7
This
technology's
successful
use
in
the
Pok6mon
GO
application
implies
that
its future
use
could
be
widespread.
AR
technology,
however,
has
never
been
limited
to
entertainment,
and
other
uses
are
already
in
development.
48
For
example,
the
Israeli
military
is
beginning
to
use
AR-it
has
purchased
two
HoloLens
glasses
from
Microsoft
and
has
created
software
that
39.
Hern,
supra
note
3;
see
Malik,
supra
note
1.
40.
See
Malik,
supra
note
1.
41.
See
Complaint
¶
7,
Pokbmon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300
(N.D.
Cal.
2016)
(No.
46).
42.
See
id.
43.
See
Prasuethsut,
supra
note
7.
44.
See
id.;
Wingfield
&
Isaac,
supra
note
29.
45.
See
Prasuethsut,
supra
note
7.
46.
See
Wingfield
&
Isaac,
supra
note
29;
Devon
Lyon,
Augmented
Reality
Storytelling
How
It
Will
Change
the
Way
We
Play
Forever,
TEDXSALEM
(Nov.
17,
2014),
https://www.youtube.com/watch?v=sYl9wl3jnms
[https://perma.cc/Y9LQ-2J65]
(describing
the
ways
AR
could
create
new
media
for
storytelling
and explaining
how
mapping
one
location,
such
as
a
forest,
could
provide
the
setting
for
multiple
stories
created
by
different
developers).
47.
See
Wingfield
&
Isaac,
supra
note
29.
48.
See
Infographic:
The
History
of
Augmented
Reality,
supra
note
15;
see,
e.g.,
Gwen
Ackerman
&
Dina
Bass,
Israeli
Army
Prepares
Augmented
Reality
for
Battlefield
Duty,
BLOOMBERG
(Aug.
15,
2016,
6:14
AM),
http://www.bloomberg.com/news/articles/2016-08
-15/microsoft-s-hololens-technology-adopted-by-israeli-military
[https://perma.cc/6YGS-R92T].
1064
[Vol.
YdX:4:1057
AUGMENTING
PROPERTY
LAW
overlays
battlefield
maps
onto
the
real
training
grounds
to
aid
in
battlefield
strategy
and
training.
49
AR
also
has
potential
for
valuable
educational
applications.
50
For example,
a
natural
history
museum
could
use
AR
to
recreate
the
external
appearance
of
a
dinosaur
around
the
dinosaur
skeleton
on
display
in
the
museum,
allowing
history
to
come
to life
through
a
visitor's
smartphone.
5 1
AR
has
also
been
used
to
create
a
role-playing
game
in
which
students
take
on
historical
roles
and
explore
real-world
terrain,
"encourag[ing]
individuals
to
more
profoundly
explore
a
real
site
by
interacting
between
the
real
and augmented
world[s].
"52
The
full
extent
of
AR's
potential,
like
that
of
any
technological
innovation,
is
unclear.
In addition
to
military,
educational,
and
entertainment
uses,
AR
could
have
benefits
in
healthcare,
navigation,
retail,
and
safety.
53
D.
Present
Litigation
Pok6mon
GO's
popularity,
and
the
media
coverage
surrounding
its
release,
quickly
raised
a
plethora
of
legal
concerns,
some
of
which
are
already
being
litigated.
54
These
concerns
include:
the
right
to
privacy
implicated
by
Niantic's
ability
to
track
users'
movements,
injuries
to
users
who
wander
into
dangerous
situations
while
playing,
and
nuisance
and
trespass
by
game
users.
5
5
A
number
of
class
action
lawsuits
were
filed
in
the
United
States
District
Court
for
the
Northern
District
of
California
in
Summer
2016
and
consolidated
in
a
suit
before
Judge
James
Donato
on
September
23,
2016.56
Collectively
styled
In
re
Pokdmon
Go
49.
See
Ackerman
&
Bass,
supra
note
48.
50.
See
Lee,
supra
note
15,
at
14-16.
51.
See
id.
at
18.
52.
See
id.
53.
See
generally
Ackerman
&
Bass,
supra
note
48
(describing
development
of
AR
software
to
aid in
military
training);
Christina,
4
Benefits
for
Augmented
Reality
in
Healthcare,
AUGMENT
(Feb.
25,
2016),
http://www.augment.com/blog/4-benefits-augmented-reality
-healthcare/
[https://perma.cclB4GV-XHUC]
(detailing
various
uses
for
AR
in
the
healthcare
field);
Augment,
4
Ways
Augmented
Reality
Will
Change Everyday
Life,
AUGMENT
(Aug.
4,
2016),
http://www.augment.com/blog/4-ways-augmented-reality-will-change-everyday
-life/
[https://perma.cc/4XPD-W49H]
(explaining
how
AR
could
be
used
as
a
navigation
tool,
aid
first
responders,
and
help
shoppers
make
decisions).
54.
See
Complaint
25-28,
Pokbmon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300
(N.D.
Cal.
2016)
(No.
46).
55.
Beatriz
Costa-Lima
and
Mary
Hudetz,
The
'Pokemon
Go'
Files:
10
Tales
of
Trespass,
Robbery,
Murder,
and
More,
INS.
J.
(July
15,
2016),
http://www.insurancejournal.com/news/
national/2016/07/15/420198.htm
[https://perma.cc/C4XC-HU4E].
56.
See
Consolidation
and
Case
Management
Order,
Pok6mon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300-JD
(N.D.
Cal.
2016)
(No.
34);
see
also
Defendant's
Unopposed
1065
2017]
VAND.
J.
ENT.
&
TECH.
LAW
Nuisance
Litigation,
Case
No.
3:16-cv-04300-JD,
Document
34
(N.D.
Cal.
Sept.
23,
2016),
the
plaintiffs,
individually
and
on
behalf
of
all
others
similarly
situated,
allege
"Niantic's
unauthorized
placement
of
Pok6stops
and
Pok6mon
Gyms
on
or
near
the
property
of
Plaintiffs
and
other
members
of
the
proposed
class
constitutes
an
intentional
entry
of
their
properties."
57
The
plaintiffs
allege
nuisance,
trespass,
and
unjust
enrichment,
seeking
an
injunction
and
other
relief
against
Niantic's
alleged
wrongful
conduct.
5
8
Presumably,
such
an
injunction
would
involve
Niantic
removing
digital
game
features
from
privately
owned
land.
With
AR
already
prompting
questions
about
the
rights
of
landowners,
the
legal
system needs
to
respond.
The
next
Part
explores
existing
property
rules
pertaining
to
the
right
to
exclude
in
order
to
provide
a
sense
of
the
scheme
into
which
a
solution
must
fit.
II.
BACKGROUND
ON
THE
PROPERTY
RIGHT
TO
EXCLUDE
Then-Justice
Rehnquist
characterized
the
right
to
exclude
others
from
one's
property
as
"one
of
the
most
essential
sticks
in
the
bundle
of
rights
that
are
commonly
characterized
as
property."
59
Many
agree
that
the
right
to
exclude
is
one
of
the
most
important
property
rights.
60
Some
have
gone
so
far
as
to
consider
the
right
to
exclude
constitutional
in
nature.
6
1
Both
this
general
conception
of
property-as
a
series
of
rights-and
Justice
Rehnquist's
characterization
of
the
right
to
exclude
as
"one
of
the
most
essential"
rights
provide
a
framework
for
conceptualizing
property
rights
in
the
context
of
AR.
6 2
Administrative
Motion
to
Consolidate,
Pok6mon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300
-JD
(N.D.
Cal.
2016)
(No.
20).
57.
See
Complaint
¶
7,
Pokimon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300-JD.
58.
See
id.
at
25-28.
On
January
27,
2017,
the
defendants
filed
motions
to
dismiss,
but
as
of
February
2017,
the court
has
not
ruled
on
them.
See
e.g.,
Defendant's
Motion
to
Dismiss,
Pokimon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300-JD
(N.D.
Cal.
2017)
(No.
62)
("Plaintiffs
would
never
even
see
the
allegedly
intruding
Game
Items
unless
they
played
the
game
at
home....
They
do
not
(and
cannot)
allege
any
unauthorized
entry
or
tangible
invasion
of
their
properties
by
Game
Items,
let
alone
a
significant
one.").
59.
Kaiser
Aetna
v.
United
States,
444
U.S.
164,
176
(1979)
(Rehnquist,
J.).
It
should
be
noted
that
the
bundled
rights
metaphor
of
property
is
dominant,
but
not
universally
accepted.
See,
e.g.,
J.E.
Penner,
The
"Bundle
of
Rights"
Picture
of
Property,
43
UCLA
L.
REV.
711,
714
(1996).
60.
Thomas
W.
Merrill,
Property
and
the
Right
to
Exclude,
77
NEB.
L.
REV.
730,
730
(1998)
(arguing
that
without
the
right
to
exclude,
one
does
not
own
property).
61.
David
L.
Callies
&
J.
David
Breemer,
The
Right
to
Exclude
Others
from
Private
Property:
A
Fundamental
Constitutional
Right,
3
WASH.
U.
J.L.
POL'Y
39,
40-41
(2000).
62.
See
Kaiser
Aetna,
444
U.S.
at
176
(Rehnquist,
J.).
1066
[Vol.
YJX:4:1057
AUGMENTING
PROPERTY
LAW
These
property
rights
are
not
fixed;
rather,
they
evolve
over
time
in
response
to a
variety
of
underlying
considerations.
63
Those
rights
are
often
developed
through
state
common
law.
6 4
This
allows
for
gradual
evolution
of
doctrine
in
service
of
the
fundamental
issues
that
animate
property
law.
6 5
This
Note
examines
five
of
the
doctrines
as
they
currently
stand
in
property
law,
but
it
contends
that
this
law
does
not
and
should
not
exist
for
its
own
sake.
Property
law
must
serve
the
ideals
that
have
shaped
it
throughout
history,
and
when
the
essential
ideals
change,
the
law
must
evolve
accordingly.
66
Two
key
theories
underlying
the
policy
aims
of
property
law
are
the
personhood
and
utilitarian
theories
of
property.
67
Under
a
utilitarian
view,
property
should
serve
society
by
maximizing
welfare.
68
Under
a
personhood
view,
property
is
viewed
as
a
"part
of
oneself."
69
The
home,
especially,
is
connected
to
notions
of
personhood:
"The
home
is
a
moral
nexus
between
liberty,
privacy,
and
freedom
of
association."
70
Virtual
invasions
of
private
property
through
AR
put
these
two
notions
into
tension
with
each
other.
The
highest
and
best
use
of
land
to
maximize
welfare
requires
hundreds
of
virtual
intrusions
by
various
AR
developers.
Some
of
those
intrusions,
however,
may
offend
an
owner's
sense
of
personhood
by
placing
an
otherwise
harmless
virtual
object
"on"
the
owner's
land
without
consent.
Thus,
there
is
a
question
whether
the
right
to
exclude
should
extend
to
these
virtual
intrusions.
The
right
to
exclude
is
paramount
to
other
property
rights
because
it
furthers
the
goals
fundamental
to
property
law.
Basic
goals
of
property
include
protecting
the rights
of
the
first
possessor,
encouraging
labor,
maximizing
social
welfare,
and
promoting
personhood
and
personal
development.
71
These
sticks
in
the
bundle
can
be
broken
up
and
change
hands
independently
of
each
other.
72
Therefore,
the
right
to
exclude
virtual
presences
can
be
distinct
from
63.
See
Lynda
L.
Butler,
The
Resilience
of
Property,
55
ARIZ.
L.
REV.
847,
852
(2013)
("[P]roperty
is
an
evolving
institution
that
engages
multiple
values
and
norms
vetted
through
a
dialectical
process
involving
political,
moral,
economic,
scientific,
social,
and
legal
perspectives.").
64.
See
id.
at
875
("Mhe
common
law
has
allowed
property
to
develop
through
a
dialectical
process
of
advocacy,
deliberation,
and
reasoning.").
65.
See
id.
66.
See
id.
67.
See
Margaret
Jane
Radin,
Property
and
Personhood,
34
STAN.
L.
REV.
957,
958
(1982).
68.
See
id.
at
984.
69.
See
id.
at
992.
70.
Id.
at
991.
71.
See
John
G.
Sprankling
&
Raymond
R.
Coletta,
PROPERTY:
A
CONTEMPORARY
APPROACH
2-7
(Thomson
Reuters
eds.,
3d ed.
2009).
72.
See
id.
at
27.
1067
2017]
VAND.
J
ENT.
&
TECH
LAW
traditional
trespass
and
nuisance
doctrines
if
courts
choose
to
treat
it
as
such.
Courts
have previously
redefined
property
rights
when
faced
with
technological
advancements.
73
Notably,
the
development
of
air
travel
challenged
the
traditional
notion
that
ownership
rights
extended
up
to
the
heavens.
With
the
ability
and
need
for
air
travel,
policy
considerations
prompted
a
new
rule.
7 4
In
United
States
v.
Causby,
the
Supreme
Court
stated:
It
is
ancient
doctrine
that
at
common
law
ownership
of
the
land
extended
to
the
periphery
of
the
universe....
But
that
doctrine
has
no
place
in
the
modern
world.
The
air
is
a
public
highway,
as
Congress
has
declared.
.
..
Yet
it
is
obvious
that
if
the
landowner
is
to
have
full
enjoyment
of
the
land,
he
must
have
exclusive
control
of
the immediate reaches
of
the
enveloping
atmosphere.
75
Thus,
in Causby,
the
Court cut
back
a
traditional
common
law
doctrine
in
response
to
technological
developments.
76
In
doing
so,
however,
the
Court
continued
to
respect
the
rights
and
expectations
of
landowners.
77
The
following
subsections
examine
different
schemes
for
implementing
the
right
to
exclude.
Subsection
A
addresses
schemes
regulating
uninvited
physical
invasions,
which
generally
fit
under
the
heading
of
trespass.
Subsection
B
discusses
nuisance
doctrine,
which
implements
the
right
to
exclude
by
forbidding
any
nontrespassory
interference
with
an
owner's
use
and
enjoyment
of
land.
Finally,
subsection
C
briefly
discusses
the
still-developing
right
to
exclude
in
the virtual
and
electronic
worlds.
A.
Models
for
the
Right
to
Exclude
Physical
Intrusions
1.
Traditional
Trespass
The
Restatement
(Second)
of
Torts
provides
that
a
person
is
liable
"for
trespass,
irrespective
of
whether
he
thereby
causes
harm
.
. .
if
he
intentionally
enters
land
in
the
possession
of
another,
or
causes
a
thing
or
third
person
to
do
so
. .
.
."78
Under
the
Restatement,
a
trespasser
is
liable
for
any
entry
onto
the
land
of
another,
even
if
the
intrusion
does
not
cause
harm.
79
Consent
to
73.
See,
e.g.,
United
States
v.
Causby,
328
U.S.
256,
260-61,
264
(1946).
74.
See
id.
75.
Id.
76.
See
id.
77.
See
id.
78.
RESTATEMENT
(SECOND) OF
TORTS
§
158
(AM.
LAW
INST.
1965).
79.
Id.
1068
[Vol.
XIX:4:1057
AUGMENTING
PROPERTY
LAW
trespass
provides
an
affirmative
defense.
8
0
Under
this
rule,
physical
intrusions
are
not
permitted
unless
they
are
affirmatively
invited.
81
Thus,
under
traditional
trespass
to
land,
non-owners
are
assumed
to
be
barred
from
entry
to
property
until
the
owner
consents
to
their
entry.
82
This
scheme
reflects
an
absoluteness
of
rights
to
real
property
that
is
embodied
in
Jacque
v.
Steenberg
Homes,
Inc.
There,
Steenberg
Homes
asked
members
of
the
Jacque
family
for
permission
to
transport
a
modular
home
over
their
land.
8
3
There,
Steenberg
Homes
transported
a
modular
home
over
the
land
after
the
Jacques
explicitly
denied
permission
for
it
to
do
so.
8 4
A
jury
awarded
$1
in
nominal
damages
and
$100,000
in
punitive
damages.
85
The
trial
court
set
aside
the
award
for
punitive
damages,
but
the
Supreme
Court
of
Wisconsin
ultimately
held
that
juries,
when
granting
nominal
damages
for
intentional
trespass
to
land,
may
also
grant
punitive
damages;
it
also
held
that
the
jury's
award
of
$100,000
was
not
excessive
and
ordered
the
punitive
damages
to
be
reinstated.
86
The
court
stated,
"The
law
infers
some
damage
from
every
direct
entry
upon
the
land
of
another
.
. . .
[I]n
the
case
of
intentional
trespass
to
land,
the
nominal
damage
award
represents
the
recognition
that,
although
immeasurable
in
mere
dollars,
actual
harm
has
occurred."
87
The
court
further
reasoned:
Society
has
an
interest
in
punishing
and
deterring
intentional
trespassers
beyond
that
of
protecting
the
interests
of
the
individual
landowner.
Society
has
an
interest
in
preserving
the
integrity
of
the
legal
system.
Private
landowners
should
feel
confident
that
wrongdoers
who
trespass
upon
their
land
will
be
appropriately
punished.
When
landowners
have
confidence
in
the
legal
system,
they
are
less
likely
to
resort
to
"self-help"
remedies.
88
Therefore,
in
service
of
both
individual
and
societal
interests,
the
right
to
exclude
others
from
entering
privately
owned
land
is
strictly
enforced.
8
9
80.
Id.
§§
167,
892A.
There
are
other
affirmative
defenses
available,
but
as
none
of
them
are
relevant
to
AR
or
this
general
topic,
this
Note
sets them
aside
for
simplicity's
sake.
See,
e.g.,
id.
§§
196-197.
81.
See
id.
§§
158,
167,
892A.
82.
See
id.
83.
Jacque
v.
Steenberg
Homes,
Inc.,
563
N.W.2d
154
(Wis.
1997).
84.
Id.
at
157.
85.
See
id.
at
156.
86.
See
id.
87.
Id.
at
160
(citing
W.
Page
Keeton,
Prosser
and
Keeton
on
Torts,
§
13
(5th
ed.
1984)).
88.
Id.
89.
See
id.
1069
2017]
VAND.
J.
ENT.
&
TECH.
LAW
While
property
rights
to
land
itself
are
fairly
straightforward,
airspace
and
subsurface
rights
are
more
complicated.
As
mentioned,
at
common
law,
landowners
owned
the
space
above
and
below
their
property
up
to
the
heavens
and
down
to
the
center
of
the
earth.
90
Today,
the
Restatement
(Second)
of
Torts
provides
that
aircraft
flight
is
a
trespass
if
the
aircraft
both
enters
into
the
immediate
reaches
of
the
airspace
next
to
the land
and
interferes
substantially
with
the
use
and
enjoyment
of
that
land.
91
Although
this
is
a
physical
intrusion
into
space
that
was
historically
thought
to
be
privately
owned,
property
law
developed
a
new
facet
of
the
doctrine
in
consideration
of
a
policy
that
aircraft
flight
is
beneficial
to
society.
9
2
This
doctrine,
however,
looks
more
like
nuisance
(discussed
below)
than
physical
trespass
because
it
requires
proof
of
injury.
93
2.
Access
Land
The
general
rule
applied
to
real
property
is
the
model
set
forth
in
the
Restatement
and
in
Jacque,
in
which
the
entry
of
a
non-owner
constitutes
trespass
absent
consent.
94
Britain
adopted
an
alternative
approach
in
its
Countryside
and
Rights
of
Way
Act
(CRoW).
95
CRoW
allows
certain
land
to
be
designated
as
"access
land,"
where
members
of
the
public
may
"enter
and
remain
on
any
access
land
for
the
purposes
of
open-air
recreation"
provided
they
do
not
cause
damage
and
observe
other
general
restrictions.
96
Landowners
cannot
put
up
signs
deterring
entrance
to
access
land.
9 7
Under
this
mode
of
regulation,
policy
considerations
justify
the
drastic
reduction
of
the
right
to
exclude;
with
the
concept
of
access
land,
allowing
private
owners
to exclude
all
others
does
not
achieve
the
highest
and
best
use
90.
See
United
States
v.
Causby,
328
U.S.
256,
260-61
(1946).
91.
RESTATEMENT
(SECOND)
OF
TORTS
§
159(2)
(AM. LAW
INST.
1965).
92.
See
Causby,
328
U.S.
at
261.
93.
Compare
RESTATEMENT
(SECOND)
OF
TORTS
§
159
(AM.
LAW
INST.
1965).,
with
RESTATEMENT
(SECOND)
OF
TORTS
§
821D,
822
(AM.
LAW INST.
1965).
94.
See
Jacque,
563
N.W.2d
at
160;
RESTATEMENT
(SECOND)
OF
TORTS
§
158
(AM.
LAW
INST.
1965).
95.
See
Countryside
and
Rights
of
Way
Act
2000,
2000
c.
37
(Eng.),
http://www.1egislation.gov.uk/ukpga/2000/37/pdfs/ukpga_20000037_en.pdf
[https://perma.cc/
Q7NB-C68W];
see
also
Jerry
L.
Anderson,
Britain's
Right
to
Roam:
Redefining
the
Landowner's
Bundle
of Sticks,
19
GEO.
INT'L
ENVTL.
L.
REV.
375,
404-06
(2007).
96.
See
Countryside
and Rights
of
Way
Act
2000,
2000
c.
37.
97.
See
id.
at
c.
37,
§
14.
1070
[Vol.
YJX:4:1057
AUGMENTING
PROPERTY
LAW
of
the
land.
98
This
reflects
a
value
judgment
that
the
benefits
of
public
use
of
access
lands
outweigh
the
interests
of
private
landowners.
99
3.
Open
Range
Between
these
two
extremes
lies
a
middle
ground
approach
to
the
right
to
exclude
that
western
states
and
territories
applied
in
the
nineteenth
century:
the
open
range
system.
100
Under
such
a
system,
"all
have
equal
run"
of
the
land.
101
For
example,
ranchers
may
allow
livestock
to
roam
and
graze
on
land
owned
by
others
at
no
cost
to
the
rancher.
1
02
While
this
system
looks
like
Britain's
CRoW,
there
is
a
key
difference
in
Montana's
open
range
system:
property
owners
may
exclude
others
by
building
fences.
103
The
practical
needs
of
the
nineteenth-century
western
territories
and
states,
which
were
sparsely
populated
and
contained
an abundance
of
land,
differed
from
those
in
Britain
and
the
eastern
United
States:
the
abundance
of
land
might
have
gone
unused
if
ranchers
were
confined
to
grazing
their
herds
on
fenced-in
land.
1
04
The
open
range
system
developed
by
custom
and
was
later
codified
in
statutes.
105
As
technology
and
the
western
United
States
developed,
broad
open
range
polices
no
longer
made
sense,
so
property
law
adapted
through
case
law,
construing
open
range
statutes
more
narrowly.
106
98.
See
Anderson,
supra
note
95,
at
405
("Parliament
was
convinced
that
the
public
benefit
from
opening
up access
to
these
lands
far
outweighed
the
additional
burden
on
the
landowners.").
99.
Id.
100.
See
Roy
H.
Andes,
A
Triumph
of
Myth
over
Principle:
The
Saga
of
the
Montana
Open-Range,
56
MONT.
L.
REV.
485,
486
(1995).
See
also
Robert
C.
Ellickson,
Of
Coase
and
Cattle:
Dispute
Resolution
Among
Neighbors
in
Shasta
County,
38
STAN.
L.
REV.
623,
660
(1986).
101.
See
Andes,
supra
note
100,
at
485.
102.
See
id.
103.
Compare
Countryside
and Rights
of
Way
Act
2000,
2000
c.
37,
§
14
(Eng.)
http://www.legislation.gov.uk/ukpga/2000/37/pdfs/ukpga_20000037_en.pdf
[https://perma.cc/HG54-T6S8]
(forbidding
landowners
from
placing
information
deterring
entrance
on
or
near
access
land),
with
Andes,
supra
note
100,
at
485
("[D]amages
caused
by
trespassing
livestock
may
not
be
recovered
unless
the plaintiff
had
erected
a
statutory
'legal'
fence
to
fence
out
animals.").
104.
See
Andes,
supra
note
100,
at
486.
105.
See
id.
at
486-87.
106.
See
id.
at
488.
Recently,
and
with
little
explanation,
the
Montana
Supreme
Court
readopted
a
broad application
of
the
open
range
doctrine.
See
id.
at
499-500.
1071
2017]
VAND.
J.
ENT.
&
TECH.
LAW
B.
Private
Nuisance
and
the
Right
to
Exclude
Nonphysical
Invasions
The
Restatement
(Second)
of
Torts
defines
private
nuisance
as
"a
nontrespassory
invasion
of
another's
interest
in
the
private
use
and
enjoyment
of
land."
107
Possessors
of
land
may
receive
damages
for
nuisance
only
when
the
invasion
causes
them
significant
harm
and
is
either
intentional
and
unreasonable,
or
unintentional
but
"otherwise
actionable"
in
tort.
108
While
the
mere
fact
of
intrusion
is
enough
to
prove
trespass,
nuisance
requires
more.
109
In
the
case
of
AR,
interference
would
always
be
intentional
(as
the
development
of
an
application
is
an
intentional
act),
but
the
unreasonable
prong
of
this
inquiry
presents
problems
for
landowners
seeking
damages.
110
As
there
is
apparently
no
case
law
on
what constitutes
an
unreasonable
AR
interference,
courts
would
be
working
with
a
blank
slate.
Judges
would
have
to
draw
analogies
to
real-world
interferences
and
might
consequently
only
regulate
the
incidental
effects
of
AR.
Individual
landowners
may
feel
differently
about
different
AR
applications,
and
the
facts
of
the
first
cases
that
happen
to
reach
the
high
court
in
each
jurisdiction
could
affect
application
of
the
doctrine
for
decades
to
come.
C.
Current
Governance
of
the
Electronic
and
Virtual
Worlds
Rules
governing
unwanted
electronic
communications
like
spain
e-mails
and
unsolicited
commercial
phone
calls
do
not fit
neatly
into
the
category
of
rules animating
the
right
to exclude
for two
reasons.
First,
they
do
not
concern
real
property
or,
in
some
cases,
even
chattels.
In
Intel
Corp.
v.
Hamidi,
the
California
Supreme
Court
declined
to
extend
the
doctrine
of
trespass
to
chattels
to
include
"an
otherwise
harmless
electronic
communication
whose
contents
are
objectionable."'
11
Second,
many
rules
pertaining
to
the
exclusion
of
unwanted
electronic
communications
are
governed
by
federal
statute,
not
state
common
law.
112
107.
RESTATEMENT
(SECOND) OF
TORTS
§
821D
(AM.
LAW
INST.
1965).
108.
Id.
§§
821F, 822.
109.
See
id.
§§
158,
822.
110.
See
id.
§
822.
111.
Intel
Corp.
v.
Hamidi,
71
P.3d
296,
308 (Cal.
2003).
112.
See,
e.g.,
Controlling
the
Assault
of
Non-Solicited
Pornography
And
Marketing
Act
of
2003,
15
U.S.C.
§
7704
(2012)
("It
is
unlawful
for
any
person
to
initiate the
transmission,
to
a
protected
computer,
of
a
commercial
electronic
mail message,
or
a
transactional
or
relationship
message,
that
contains,
or
is
accompanied
by,
header
information
that
is
materially
false
or
materially
misleading.");
Telephone
Consumer
Protection
Act
of
1991,
47
U.S.C.
§
227 (2012)
("It
shall
be
unlawful
for
any
person within
the
United
States,
or
any
person outside
the
United
States
if
the
recipient
is
within the
United
States-to
initiate
any
telephone
call
to
any
1072
[Vol.
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AUGMENTING
PROPERTY
LAW
Some
online
games
create
wholly
virtual
worlds,
inhabited
by
avatars
controlled
by
users;
these
users
can
own
property
within
the
game.
113
That
property
could
be
destroyed
if
the
game's
owner
shuts
down
or
wipes
its
servers.
114
End-User
License
Agreements
typically
grant
rights
to
the
game
owners
anyway,
but
courts
may
recognize
the
property
interests
of
users.
11
5
In
some
instances,
virtual
worlds
might
develop
their
own,
in-game
legal
remedies
to
govern
their
virtual
communities.
116
So,
mechanisms
exist
for
governing
property
rights
in
the
real
world
and
the
electronic
and
virtual
worlds,
but
so
far
there
is
no
satisfying
solution
for
governing
the
area
where
the
virtual
and
the
real
worlds
overlap.
III.
ANALYSIS
Thus
far,
proposed
solutions
to
the
legal
issues
implicated
by
AR
are
inadequate.
This
Part
addresses
some
of
those
reactions
and
explains
why
they
fall
short.
To
illustrate
potential
effects
of
previously
proposed
solutions,
this
Note
introduces
four
hypothetical
AR
applications,
to
which
it
applies
the
potential
solutions.
It
considers
application
of
traditional
property
law,
as
well
as
AR-
specific
solutions
put
forward
by
attorneys
and
commentators.
1 17
In
evaluating
solutions,
this
Note
considers
how
a
solution
might
impact
the
development
of
new
AR
applications-which
can
help
promote
the
highest
and
best
use
of
land-and
how
much
a
solution
protects
a
landowner's
right
to
exclude
and
that
landowner's
personhood
interest
in
property.
A.
Four
Hypothetical
AR
Applications
First,
imagine
an
application
called
BlueBox
that
places
a
virtual
blue
box
at
the
geographic
coordinates
of
every
privately
owned
home.
118
The
blue
boxes
do
nothing.
They
do
not
move;
they
do
not
open.
They
just
appear
to
exist
on
privately
owned
property
when
residential
telephone
line
using
an
artificial
or
prerecorded
voice
to
deliver
a
message
without
the
prior
express
consent
of
the
called
party
. . .
.").
113.
See
F.
Gregory
Lastowka
&
Dan
Hunter,
92
CAL.
L.
REV.
1,
30
(2004)
("Central
to
the
operation
of
most
modern
virtual
worlds
is
a
property
system,
with
all
of
the
familiar
real-
world
features
of
exclusive
ownership,
persistence
of
rights,
transfer
under
conditions
of
agreement
and duress,
and
a
currency
system
to
support
trade.").
114.
See
id.
at
40.
115.
See
id.
at
50-51.
116.
See
id.
117.
See,
e.g.,
Complaint
2,
Pokdmon
Go
Nuisance
Litigation,
Case
No.
3:16-cv-04300
(N.D.
Cal.
2016)
(No.
46);
Hern,
supra
note
3.
118.
Thanks
to
Professor
J.B.
Ruhl
for
originally
posing
this
hypothetical.
1073
2017]
VAND.
J.
ENT.
&
TECH.
LAW
a
user
views
the
property
through
a
smartphone
camera.
Second,
consider
an
application
called
TURNs
that,
through
high-tech
windows
and
windshields
installed
in
cars,
gives
drivers
turn-by-turn
directions
to
their
destinations,
allowing
them
to
navigate
effectively
without
ever
looking
away
from
the
road.
The
application
is free
for
users,
but
developers
monetize
the
application
by
selling
advertisements.
In
addition
to
seeing
turn-by-turn
directions,
drivers
see
signs
advertising
products,
services,
and
political
candidates
that
appear
to
exist
on
the
lawns
of
privately
owned
homes,
but
owners
have
no
control
over
the advertisements
that
appear
on
their
lawns.
119
Third,
imagine
an
application
called
Graffiti
GO
that
allows
users
to
draw
virtual
images
on
houses
and
other
buildings.
Those
drawings
become
permanent
within
the
application,
like
graffiti.
Some
users
paint
beautiful
works
of
art
while
others write
obscene
words
on
the
side
of
houses.
Finally,
imagine
an
application
called
History
GO,
developed
by
a
non-profit
educational
organization
and
designed
for
school-aged
children.
History
GO
highlights
historical
sites
as
users
visit
them.
It
provides
information
about
the
sites
and
allows
users
to
earn
badges (in-game
accolades,
similar
to
real-life
merit
badges)
for
visiting
sites
and
completing
in-game
tasks
like
quizzes
designed
to
promote
retention
of
information.
These
four
hypothetical
applications
demonstrate
the
wide
range
of
potential
uses
of
AR,
and
each
presents
policy
considerations
and
consequences
that
will
differ
based
on
different
potential
legal
responses
to
AR.
Because
not all
applications
will
present
the
same
problems
and
benefits
as Pok6mon
GO,
it
is
important
to
consider
the
consequences
of
a
variety
of
applications
when
choosing
a
method
of
regulating
the
property
rights
implicated
by
AR.
B.
Common
Law
Property
Doctrines
Do
Not
Fit
an
AR
Scheme
An obvious
solution
to
the
potential
problems
AR
poses
is
to
apply
traditional
property
law
concepts
of
trespass
and
nuisance
to
AR.
However,
applying
traditional
trespass
to
AR
is
over-inclusive
and
will
deter
development
of
AR
applications.
Trespass
is
limited
to
entry
onto
land,
which
is
presumably
physical.
120
Therefore,
virtual
intrusions
do
not
fit
neatly
into
traditional
trespass
doctrine.
If,
however,
trespass
were
expanded
to
include
virtual
intrusions,
all
119.
Augmented
reality
windshield
displays
are
not
yet
commonplace,
but
the
technology
is
possible
today.
The
Rinspeed
Oasis,
a
self-driving
Swiss
concept
car,
uses
just
such
a
windshield.
See CES
2017
in
Las
Vegas,
RINSPEED,
http://www.rinspeed.eulaktuelles.php?aid=20
[https://perma.cclMT7Y-JZ3P]
(last
visited
Feb.
18,
2017).
120.
See
RESTATEMENT
(SECOND)
OF
TORTS
§
158
(AM.
LAW INST.
1965).
1074
[Vol. XIEK:4:1057
AUGMENTING
PROPERTY
LAW
virtual
intrusions
would
be
forbidden
absent
consent
from
landowners.
12 1
Requiring
developers
to
seek
consent
from
all
landowners
before
launching
an
application
is
unrealistic
for
applications
that,
like
Pok6mon
GO,
utilize
a
digital
map
with
virtual
presences
nationwide.
1
22
Applying
trespass
to
the
hypotheticals
previously
set
out,
History
GO
would
have
to
seek
permission
from
every
site
it
sought
to
include
in
its
application
before
release.
This
could
incentivize
landowners
to
hold
out
and
demand
compensation
when
the
aims
of
the
application
are
educational,
not
for
profit,
and
generally
beneficial
to
society.
TURNs
might
need
to
seek
permission
to
include
addresses
and
would
almost
certainly
be
barred
from
placing
advertisements,
pushing
costs
onto
application
users.
This
kind
of
limitation
would
chill
development
of
similar
applications
and
likely
limit
development
to
large
companies
with
the
capital
to
purchase
virtual
easements.
Nuisance
seems
like
the
best
way
to
regulate
AR
under
traditional
property
law,
since
virtual
intrusions
are
nontrespassory.
123
However,
nuisance
would
likely
prove
under-inclusive,
only
providing
compensation
for
landowners
if
the
virtual
intrusion
caused
"significant
harm."
Also,
nuisance
fails
to
deter
unwanted
intrusions
because,
in
the
context
of
virtual
intrusions,
it
is
likely
that
injury
will
be
intrinsic
and
difficult
to
define
or
measure.
In
Jacque,
the
court
allowed
punitive
damages
because
Steenberg
intentionally
trespassed
on
the
land
of
another,
even
though
it
was
efficient
to
do
so.
12 4
The
Jacques'
decision
to
refuse
payment
in
exchange
for
the
right
to
cross
was
not
an
economic
one.
125
Similarly,
the
damage
done
by
Steenberg
was
not
economic:
"[I]n
certain
situations
of
trespass,
the
actual
harm
is
not
in
the
damage
done
to
the
land,
which
may
be
minimal,
but
in
the
loss
of
the
individual's
right
to
exclude
others
from
his
or
her
property."
126
Nuisance
law's
additional
restrictions
preclude
recovery
merely
for
the
loss
of
the
right
to
exclude.
127
If
nuisance
law
is
strictly
applied,
only
the
effects
of
virtual
intrusions,
not
the
intrusions
themselves,
would
be
regulated.
If
the
intrusion
draws
third
parties
to
the
land
and
incentivizes
them
to
trespass
or
in
some
way
disturb
landowners'
use
121.
See
id.
§§
158
cmt.
c,
167,
892A.
122.
See
Wingfield
&
Isaac,
supra
note
29.
123.
See
RESTATEMENT
(SECOND)
OF
TORTS
§
821D
(AM.
LAW
INST.
1965).
124.
Jacque
v.
Steenberg
Homes,
Inc.,
563
N.W.2d
154,
156-57
(Wis.
1997).
125.
See
id.
at
157
("Mr.
Jacque
responded
that
it
was
not
a
question
of
money;
the
Jacques
just
did
not
want
Steenberg
to
cross
their
land.").
126.
Id.
at
159.
127.
See
RESTATEMENT
(SECOND)
OF
TORTS
§§
821F,
822
(AM.
LAW
INST.
1965).
2017]
1075
VAND.
J.
ENT.
&
TECH.
LAW
and
enjoyment
of
the
property,
or
if
a
virtual
presence
affects
the
market
value
of
property,
the
intrusion
could
be
excluded.
However,
this
fails
to
serve
the
values
underlying
Jacque
or
Justice
Rehnquist's
sentiments
in
Kaiser
Aetna
v.
United
States,
chiefly
a
broad
respect
for
a
landowner's
right
to
exclude,
whether
or
not
the
intrusion
does
actual harm.
128
Applying
this
to
the
hypotheticals,
Graffiti
GO
could
be
excluded
only
after
a
factual
finding
that
virtual
drawings
affect
the
use and
enjoyment
of
land,
which
would
be
difficult
and unpredictable.
Developers
would
have
to
screen
individual
drawings
as
they
are
produced.
Also,
it
would
be
difficult
to
prove
the
effect
of
a
virtual
presence
on
the
enjoyment
or
market
value
of
property.
BlueBox
would
likely
be
insulated
from
suit,
even
if
a
particular
landowner
believed
the
intrusion
to
be
as
intolerable
as
the
Jacques
found
the
transportation
of
a
modular
home
over
their
land.
1
29
One
source
already
suggests
that
Pokimon
GO
could
implicate
attractive
nuisance
doctrine
and
that
Niantic
should
indemnify
property
owners
when
users
trespass
and
become
injured.
130
However,
attractive
nuisance
requires
five
elements:
(1)
an artificial
condition
in
a
location
that
the
landowner
knows
or
has
reason
to
know
that
children
are
likely
to
trespass
upon,
(2)
the
landowner
knows
or
has
reason
to know
the
condition
has
an
unreasonable
risk
of
death
or
serious
bodily
harm
to
children,
(3)
children
do
not
appreciate
the
danger,
(4)
the
artificial
condition's
utility
is
slight
compared
to
the risk
to
children,
and
(5)
the
possessor
does
not
take
reasonable
care
to
eliminate
the
danger.
13 1
Virtual
objects
cannot
present
a
risk
of
death
or
serious
bodily
harm
because
they
do
not exist
in
the
physical
world.
Therefore,
AR
applications
fail
the
second
prong
of
the
attractive
nuisance
test
and
the
doctrine
cannot
properly
regulate
AR.
13
2
Furthermore,
this
solution's
reliance
on
indemnification
only
serves
to
protect
a
landowner
from
a
suit
by a
third
party,
and
only
after
that
third
party
brings
a
suit.
13 3
It
does
nothing
to
protect
128.
See
Kaiser Aetna
v.
United
States,
444
U.S.
164,
176
(1979)
(Rehnquist,
J.);
Jacque,
563
N.W.2d.
at
159.
129.
See
Jacque,
563
N.W.2d
at
157.
130.
See
Is
PokemonGo
Illegal?,
ASSOCIATE'S
MIND,
http://associatesmind.com
/2016/07/11/is-pokemongo-illegall
[https://perma.cc/8EXX-RMCT]
(last
updated
July
13,
2016).
131.
RESTATEMENT
(SECOND)
OF
TORTS
§
339
(AM.
LAW
INST.
1965).
For
example,
a
swimming
pool
without
an
adequate
fence
might
constitute
an
attractive
nuisance.
See,
e.g.,
King
v.
Lennen,
348
P.2d
98,
101
(Cal.
1959).
132.
See
RESTATEMENT
(SECOND)
OF
TORTS
§
339
(AM.
LAW INST.
1965).
133.
See
Is
PokemonGo
Illegal?,
supra
note
130.
1076
[Vol.
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VAND.
J
ENT
&
TECH.
LAW
constituted
a
trespass.
139
Upon
consolidation,
however,
the
plaintiffs
amended
the
complaint
to
add
a
cause
of
action
for
trespass,
alleging
that
Niantic
trespassed
on
their
property
by
causing
Pok6mon,
Pok6stops,
and
Pok6mon
gyms
to
enter
the
virtual
space
around
their
land.140
Regulating
AR
through
class action
lawsuits
is
problematic
for
two
reasons.
First,
there
may
be
difficulties
with
certifying
a
class
due
to
the
uniqueness
of
each
piece
of
property
and
the
fact
that
some
owners
may
actually
prefer
to
have
Pok6stops
nearby
and
are
helped
rather
than
harmed
by
Niantic's
placements.
141
It
will
therefore
be
difficult
for
the
plaintiffs
to
prove
commonality,
a
requirement
for
class actions
to
proceed
under
Rule
23.142
In
a
suit
against
the
hypothetical
developers
of
Graffiti
GO,
the
damages
to
each
individual
property
would
be
different-some
use,
enjoyment,
and
value
of
property
enhanced
by
artistic
drawings,
some
use,
enjoyment,
and
value
diminished
by
crude
drawings and
obscene
words.
Second,
this
system both
over-
and
under-regulates
development
of
new
applications.
It
is
over
regulatory
because
small,
start-up
developers
will
be
unable
to
defend
a
class
action
suit.
Thus,
some
developers
will
be
priced
out,
potentially
curbing
innovation
of
new,
beneficial
applications.
Meanwhile,
the
system
is
under
regulatory
because,
if
a
class
action
does
proceed,
it
will
likely
end
in
a
settlement.
Unless
this
settlement
includes
a
total
injunction
against
the
application,
landowners
would receive
payment
and continue
to
be
subjected
to
the
virtual
intrusions.
Landowners
who
want
the
virtual
intrusion
removed
will
then
be
unable
to
sue
for
relief,
no
matter
how
offensive
they
find
the
intrusion.
2.
State
Statutes
Illinois
state
representative
Kelly
Cassidy
proposed
H.B.
6601,
colloquially
known
as
"Pidgey's
Law" ("Pidgey"
is
a
Pok6mon
139.
See
Complaint,
The
Villas
of
Positano
Condominium
Association,
Inc.
v.
Niantic,
Inc.,
Case
No.
3:16-cv-05091
(N.D.
Cal.
2016)
(No.
1);
Complaint,
Dodich
v.
Niantic,
Inc.,
Case
No.
3:16-cv-04556
(N.D.
Cal.
2016)
(No.
1);
Complaint,
Marder
v.
Niantic,
Inc.,
Case
No.
3:16-cv-
04300
(N.D.
Cal.
2016)
(No.
1).
140.
See
Complaint
¶¶
50-54,
Pokimon
Go
Nuisance Litigation,
Case
No.
3:16-cv-04300
(N.D.
Cal.
2016) (No.
46).
141.
See,
e.g.,
Pokimon
GO
and
the
Law of Augmented
Reality,
supra
note
135
("[T]his
could
be
fantastic
for
businesses,
it
is
not
beyond
the
realm
of
possibility
that
businesses
would
want
to
become
stops
and
gyms.").
142.
See
FED.
R.
CIv.
P.
23;
see
also
Michael
Smith,
Evaluating
the
Pokemon
Go
Class
Action
Lawsuit,
MICHAEL
SMITH'S
L.
BLOG
(Aug.
2,
2016),
https://smithblawg.blogspot.com/2016/08/evaluating-pokemon-go-class-action.html
[https://perma.cc/4ZN7-44YY].
1078
[Vol.
XIX:4:1057
AUGMENTING
PROPERTY
LAW
commonly
found
in
Pok6mon
GO).
14 3
The
bill
would
allow
owners,
managers,
and
custodians
of
real
property
to
request
a
"site
or
location"
be
removed
from
a
"location-based
video
game."
14
4
Upon
receipt
of
a
request,
a
developer
would
have
two
business
days
to
remove
the
location
and
would
thereafter
be
charged
a
civil
fine
of
up
to
$100
per
day
that
the
location
is
not
removed.
145
This
solution
is
partially
effective,
but
is
too
narrow.
The
bill
defines
"location-based
video
game"
as
"a
game
primarily
played
on
a
mobile
device,
including,
but
not
limited
to,
smartphones
and
tablets,
that
encourages
users
to
travel
to specific
real
property
sites,
locations,
or
coordinates
for
the
purpose
of
achieving
specific
goals
within
the
game."1
46
This
restrictive
definition
excludes
non-game
AR
applications
and
applications
that
do
not
encourage
travel
to
specific
sites.1
4
7
Applying
the
statute
to
the
four
hypotheticals
introduced
above,
this
statute
would
only
apply
to
History
GO.
BlueBox
does
not
encourage
anyone
to
go
anywhere,
and
it
has
no
"specific
goals,"
so
Pidgey's
Law
would
not
cover
it.1
4
8
Similarly,
TURNs
is
purely
utilitarian-a
regular
turn-by-turn
directions
application
could
hardly
be
considered
a
game.
Graffiti
GO
is
also
likely
not
a
game
with
"specific
goals"
because
it
simply
provides
users
with
an
opportunity
to
draw
on
the
world
around
them
as
they
wish,
with
no
in-application
reward
for
doing
So.149
Further,
while
statutory
codification
provides
consistency,
allowing
the
common
law
to
evolve
in
response
to
AR
allows
flexibility,
which
is
necessary
in
this
constantly
changing
field.
The
Illinois
bill
is
a
short-sighted
reaction
to
Pok6mon
GO
that
does
not
adequately
consider
possible
future
AR
applications.
3.
Virtual
"No-Fly"
Zones
Other
solutions
do
strike
at
the
heart
of
the
property
rights
issue,
specifically
addressing
the
question
whether
and
to
what
extent
land
ownership
extends
to
the
virtual
space
"around"
a piece
of
real
143.
See
99th
ILL.
GEN.
ASSEMB.,
H.B.
6601
(2015
&
2016),
http://www.ilga.govflegislation/fulltext.asp?DocName=&SessionId=88&GA=99&DocTypeld=HB&
DocNum=6601&GAID=13&LeglD=98270&SpecSess=&Session=
[https://perma.cclNMX5
-GW7K];
Kim
Janssen,
Lawmaker:
Pokemon
No-Go
Zones,
Including
North
Side
Nesting
Grounds,
CHI.
TRIB.
(Aug.
25,
2016,
1:59
PM),
http://www.chicagotribune.com/news/chicagoinc/ct-
pidgeys-law-pokemon-go-0826-chicago-inc-201608
2
5-story.html
[https://perma.cc/7VRS-MAB8].
144.
99th
ILL.
GEN.
ASSEMB.,
H.B.
6601
(2015
&
2016).
145.
See
id.
146.
Id.
147.
See
id.
148.
See
id.
149.
See
id.
2017]
1079
VAND.
J.
ENT.
&
TECH.
LAW
property.
1
50
In
an
article
for
The
Guardian,
Alex
Hern
suggests
the
legal
system
look
to
airspace
law
as
its
guide
in
regulating
AR.
15 1
Hern
suggests
that,
soon,
a
virtual
equivalent
of
a
no-fly
zone
could
exist,
allowing
landowners
to
simply
bar
all
developers
from
putting
virtual
intrusions
on
their
land
without
having
to
contract
with
individual
developers.
152
Hern
also
draws
comparisons
to
data
protection
laws.
153
The
National
Do
Not
Call
Registry
is
a
better
analogy
for
preemptive
exclusion
of
virtual
intrusions,
and
such
a
solution
sounds
appealing
to
landowners
who
want
a
wholesale
ban
on
AR
on
their
property.154
The
flaw
with
this
solution,
however,
is
that
it
places
a
preemptive
bar
on
virtual
intrusions.
15 5
Consider,
for
example,
a
real
estate
developer
wishing
to
exclude
Graffiti
GO
from
a
new
subdivision
but
wanting
to
allow
access
to
TURNs,
which
potential
residents
would
find
useful
in
their
new
neighborhood.
The
developer
must
make
an
all-or-nothing
choice
about
AR,
which
is
not
desirable
in
this
instance.
Drivers,
who
might
rely
on
TURNs
to
navigate
the
new
development,
would
be
frustrated
by
a
neighborhood-wide
"gap"
in
the
application's
direction-giving
capabilities.
Meanwhile,
landowners
might
be
frustrated
by
the
possibility
that
their
new
homes
could
soon
be
virtually
scrawled
with
racial
slurs
or
painted
with
lewd
drawings.
A
real
estate
developer
in
this
situation
would
likely
be
unsatisfied
with
either
outcome
and
would
probably
prefer
to
simply
choose
to
exclude
Graffiti
GO
and
allow
TURNs
in
the
new
subdivision.
Wholesale
registration
of
large
areas
as
virtual
no-fly
zones
could
even
curb
the
development
of
new,
potentially
useful
AR
applications.
IV.
SOLUTION
Existing
property
law
is
not
equipped
to
respond
to
AR.
Current
law
and
proposed
solutions
will
either
chill
development
of
150.
See
Hern,
supra
note
3.
151.
See
id.
152.
See
id.;
see
also
Jesse
McKinley,
In
Pokimon
Go,
Lawmakers
Fear
Unexpected
Entrance
of
the
Sexual
Predator,
N.Y.
TIMES
(July
29,
2016),
https://
www.nytimes.com/2016/07/30/nyregion/in-pokemon-go-lawmakers-fear-unexpected-entrance-of
-the-sexual-predator.html?_r=0
[https://perma.cc/9NJH-AYDH]
(discussing
proposed
state
legislation
that
would
require
removal
of
"any
'in-game
objective'
within
100
feet"
of
certain
classes
of
sex
offenders'
homes).
153.
See
Hern,
supra
note
3.
154.
See
National
Do
Not
Call
Registry,
FED.
TRADE
COMM'N,
https://www.donotcall.gov/
[https://perma.cc/2D92-T2TV]
(last
visited
Mar.
7,
2017).
155.
See
Hern,
supra
note
3.
1080
rVol.
YJX:4:1057
AUGMENTING
PROPERTY
LAW
potentially
useful
AR
applications
or
diminish
the
right
to
exclude
in
a
virtual
context.
If
landowners
do
not
have
the
right
to
exclude
virtual
intrusions,
they
lose
the
ability
to
control
something
that
has
practical,
real
effects
on
the
character
of
their
property.
To
both
promote
development
of
AR
applications
and
preserve
the
right
to
exclude,
state
supreme
courts
should
develop
property
law
and
apply
an
adapted
version
of
the
open
range
model
of
the
right
to
exclude.
This
solution
would
allow
developers
to
create
new
applications
and
place
virtual
intrusions
on
privately
owned
land
without
needing
to
first
seek
permission
from
landowners,
just
as
the
open
range
system
allowed
ranchers
to
let
their
cattle
graze
without
first
seeking
permission.
156
However,
if
a
landowner
wishes
to
exclude
virtual
intrusions,
that
landowner
could
affirmatively
do
so,
just
as
a
landowner
could
erect
a
fence
under
the
open
range
system.
15
7
This
scheme
would
differ
from
a
pure
open
range
system
because
landowners
would
only
be
able
to
exclude
developers
once
the
virtual
map
is
announced
or
launched.
Additionally,
the
exclusion
would
be
on
an
application-by-application
basis.
The
rule
would
operate
simply
and
between
private
parties,
except
in
the
case
of
noncompliance.
Before
or
concurrent
with
the
release
of
a
new
AR
application,
a
developer
must
publish
a
website
that
provides
access
to
a
clearly
labeled
opt-out
form.
Landowners
wishing
to
exclude
their
property
could
access
the
website
at
any
time
and
fill
out
the
form
with
their
address
information.
From
the
time
of
submission,
developers
would
have
a
reasonable
time
frame,
such
as
ten
days,
to
process
the
request
and
update
their
maps
to
remove
all
virtual
intrusions
from
the
submitted
location.
Failure
to
comply
with
a
request
in
a
timely
manner
would
constitute
actionable
trespass.
Landowners
could
also
opt
back
in
if
they
change
their
minds
or
if
they
acquire
property
that
previously
opted
out.
The
developer
would
be
free
to
honor
the
opt-in
request
or
not
and
could
do
so
on
its
own
time.
Additionally,
landowners
and
application
developers
would
be
free
to
contract
to
keep
certain
areas
open
to
an
application.
This
would
be
superior
to
a
blanket
opt-out,
as
proposed
by
Hern,
because
an
all-or-nothing
approach
would
force
landowners
to
choose a
total
ban
on
AR
applications,
including
the
beneficial
ones,
and
total
allowance
of
AR
applications,
including
unsavory
ones.
58
Similarly,
it
would
serve
societal
interests
by
allowing
non-landowners
to
access
useful
AR
that
does
not
bother
landowners.
Opting
out
requires
effort,
albeit
minimal,
so
landowners
would
likely
only
do
so
156.
See
Andes,
supra
note
100,
at
485.
157.
See
id.
158.
See
Hern,
supra
note
3.
1081
2017]
VAND.
J
ENT.
&
TECH.
LAW
when
they
have
sufficient
motivation.
Returning
to
the
hypothetical
applications
discussed
above,
the
most
sensitive
landowners-those
who
believe
that,
on
principle,
they
must
have
an
absolute
right
to
exclude-could
exclude
BlueBox.
Sensitive
landowners
might
exercise
the
right
to
exclude
with
the
TURNs
application
if
they
believe
their
property
is
unjustly
enriching
the
developer
through
advertisement
revenue,
but
many
would
likely
not
go
to
the
trouble
of
opting
out
because
the
application's
use
of
their
land
is beneficial.
Landowners
would
likely
exercise
their
right
to exclude
intrusions
by
Graffiti
GO
on
a
case-by-case
basis
and
might
do so
if the
drawings
on
their
property
are
crude
or
offensive.
Landowners
who
experience
disruptions
in
their
daily
lives
could
exclude
History
GO,
but
others
who
wish
to
further
the
application's
educational
ends
could
allow
inclusion
of
their
property.
The
circumstances
surrounding
the
initial
rise
of
the
open
range
system
parallel
the
circumstances
surrounding
the
rise
of
AR.
In
the
nineteenth-century
American
west,
there
was
an
abundance
of
land.
1
59
Similarly,
there
is
an abundance
of
virtual
"space."
No
matter
how
many
Pok6mon
Niantic
populates
areas
of
its
map
with,
other
developers
will
be
able
to
populate
their
own
maps
with
different
virtual
intrusions.
There
is
no
scarcity
of
resources.
Therefore,
allowing
developers
to
fill
digital
maps
with
virtual
intrusions,
even
if those
intrusions
appear
on
private
property,
would
not
detract
from
anyone
else's
ability
to
use
the
land.
The
only
thing
potentially
lost
is
a
landowner's
sense
of
ownership.
Landowners
will
only
wish
to
exclude
virtual
intrusions
when
these
intrusions
violate
that
sense
of
ownership,
and
the
modified
open
range
system
allows
landowners
to
do
just
that.
In
other
cases,
it
leaves
AR
developers
unencumbered
and
incentivizes
them
to
create
new
applications.
This
solution
is
similar
to
Hern's
idea
of
a
virtual
no-fly
zone,
but
it
allows
landowners
to
make
a
case-by-case
decision
about
specific
applications
rather
than
forcing
them
to
choose
between
total
exclusion
and
no
exclusion
at
all.
160
The
ability
to
completely
opt
out
does
present
advantages-it
is
more
efficient
for
landowners
who
actually
wish
to
opt
out
of
all
virtual
intrusions,
and
it
prevents
landowners
from
being
subjected
to
offensive
invasions
in
the
first
place.
However,
if
landowners
have
the
opportunity
to
remove
their
property
from
all
AR
applications,
they
might
do
so,
limiting
the
use
for
beneficial
applications
in
areas
where
there
are
many
landowners
who
opt
out.
159.
See
Andes,
supra
note
100,
at
486.
160.
See
Hern,
supra
note
3.
1082
[Vol.
XIX:4:1057
AUGMENTING
PROPERTY
LAW
As
with
Pidgey's
Law,
the
modified
open
range
solution
allows
for
application-by-application
exercise
of
the
right
to
exclude
and
assumes
that
virtual
intrusions
are
permitted
until
a
landowner
affirmatively
excludes
them.
161
However,
the
modified
open
range
solution
has
two
distinct
advantages
over
Pidgey's
Law.
First,
it
closes
the
loophole
created
by
the
bill's
narrow
definition
of
games-virtual
intrusions
caused
by
any application,
regardless
of
in-application
incentives,
could
be
excluded.
16
2
Second,
the
modified
open
range
system
is
a
common
law
solution.
By
leaving
regulation
of
property
rights
where
they
have
traditionally
rested-with
state
courts-they
will
continue
to develop
as
they
have
done
for
hundreds
of
years.
When
other
unforeseeable
technological
developments
arise,
courts
will
remain
free to
further
the
development
of
the
common
law
without
constraint
from
an
outdated
statute.
While
there
is
a
risk
that
courts
crafting
different
solutions
in
fifty-one
jurisdictions
could
complicate
matters
for
AR
developers
who
create
applications
for
the
whole
nation,
companies
will
be
able
to
cope
if
the
systems
are not
too
different.
V.
CONCLUSION
AR
presents
challenges
to
property
rights,
and
it
will
continue
to
do
so
if
property
law
does
not
evolve
to
meet
them.
When
considering
how
best
to
meet
the
legal
issues
AR
raises,
potential
future
applications
must
be
considered,
not
just
applications
already
widely
released.
A
solution
must
respect
owners'
rights
to
exclude
without
destroying
incentives
to
create
new
applications.
Applying
a
modified
version
of
the
open
range
system
of
regulation
will
do
this.
This
will
allow
developers
to
place
virtual
intrusions
"on"
private
property
unless
landowners
affirmatively
exercise
their
rights
to
exclude.
This
system
balances
the
interests
of
individual
landowners
with
society's
interest
in
further
development
of
AR
technology.
It
is
unclear
what
AR
developments
the
future
will
bring,
but
the
legal
system
can,
and
must,
be
ready
to
cope
with
them
when
they
come.
Samuel
Mallick*
161.
See
99th
ILL.
GEN.
ASSEMB.,
H.B.
6601
(2015
&
2016).
162.
See
id.
*
J.D.
Candidate,
Vanderbilt
University
Law
School,
2018;
B.A.,
Vanderbilt
University
College
of
Arts
&
Science,
2014.
The
Author
thanks
Sarah
Dotzel
for
her
tireless
guidance
and
assistance;
Professor
J.B.
Ruh1
for
his
insight;
Laura
Powell,
Natalie
Gabrenya,
and
the
staff
of
the
VANDERBILT
JOURNAL
OF
ENTERTAINMENT
&
TECHNOLOGY
LAW
for
their
work
in
bringing
this
piece
to
publication;
and
his
parents
and
brothers
for
their
support.
2017]
1083