Swapping Violins, Pokémon Go, and Trespassers
In professional orchestras, both first and second violinists are accomplished musicians. The same is not true of most school orchestras where the number of accomplished violinists is limited.
First violin orchestra parts are usually more difficult than second violin parts. Therefore, in a school orchestra, the more advanced students are in first violin. Because they are more advanced and more serious, the first violinists may also have very expensive violins, which may cost $25,000 or more. A second violinist's instrument may cost under $1,000.
Although in a professional orchestra, all the violinists will learn and play their parts well, the same may not be true in a school orchestra. Because the first violinists are more serious players, they will practice their parts and be sure they learn them. The second violinists may not have the same level of dedication and may only be in the orchestra for social reasons or to meet an educational requirement.
Once I heard about a school orchestra conductor with an unusual approach to this disparity between the playing levels of the first and second violins. The conductor asked each first violinist to swap his/her violin with one of the second violinists’ instruments. Some students were reluctant to allow their expensive violins into the hands of a less experienced player, but eventually, everyone complied.
The conductor then had the students play with the borrowed violins. Not surprisingly, the first violins still played better than the second violins. At that point, the conductor announced that he had accomplished his goal–he had demonstrated that it was not the quality of the instruments but rather, the quality of the players, that caused the second violins to sound worse than the first violins.
I never heard whether this unorthodox method motivated the second violinists to work harder. However, it raises an interesting legal question: If one of a first violinist’s expensive instruments had been damaged by a second violinist, who would be responsible to pay for the repairs? Would it be the second violinist who caused the damage? Would it be the conductor who encouraged the second violinist to use the expensive instrument despite the reluctance of the first violinist? Or, would both be responsible?
A similar question currently is in front of courts where real estate owners have brought trespass suits against Niantic, the developer of Pokémon Go. Like the school orchestra conductor did not play on any of the first violinists’ instruments, Niantic never set foot on the real estate. Rather, the real estate owners claim that, like the orchestra conductor, Pokémon Go created an environment which encouraged others to trespass on their real estate.
The History of Trespass Law
Today, when we think of trespass, our minds might go to a fenced yard with a prominent “No Trespassing” sign. Or, we think of the sit-ins of the 1960’s civil rights movement, when people of color were arrested after they refused to leave lunch counters and other facilities designated as “white only.”
However, the foundations of the US law of trespass dates back hundreds of years to English common law. In English common law, trespass was not limited to entry onto someone else’s land without permission. Trespass also could exist against personal property or even a person.
US laws relating to assault and battery and personal injury tort laws arise out of the English laws of trespass to the person. Tort laws for damage to personal property come from the English laws for trespass to personal property.
Just as the laws of trespass over the person and personal property have evolved to become US tort law, cases brought by property owners against the developer of the mobile app Pokémon Go seek to expand laws relating to trespass over real estate in the tech age.
Pokémon Go (Away)!
In July 2016, the free, smartphone game app, Pokémon Go, hit the world by storm. The game, created by Niantic (a Google spin-off), is based upon the Pokémon characters popularized by Nintendo in the 1990’s.
The Pokémon Go app tracks users’ locations using their phone’s GPS. Then, the app reveals nearby virtual colorful characters called Pokémon using the phone’s camera to superimpose the Pokémon into the real-world environment. Users could follow and catch for their collection using their GPS and camera, much as Pokémon players in the 1990’s collected Pokémon trading cards.[1]
Like all software and apps, Pokémon Go has a lengthy user agreement, which includes an agreement not to trespass. However, not surprisingly, players either did not read or ignored the user agreement.
News reports abounded about Pokémon Go players being injured when walking into traffic, bumping into objects, and going onto private property in search of virtual characters. Pokémon Go sometimes drew hordes of players to communities in search of Pokémon, much like an earlier generation descended upon Woodstock in search of music in 1969.
Residents of a Florida community said the Pokémon Go app drew hundreds of players to their community at all hours of the day and night. People in search of Pokémon characters parked illegally and damaged landscaping.
Michigan residents complained of blocked private driveways and peeping toms as Pokémon Go plays invaded their neighborhood. A New Jersey attorney said he was subjected to knocks on his door by Pokémon Go players seeking access to a fenced backyard, and a Massachusetts homeowner’s property is said to have been invaded dozens of times.
Even the sanctity of the dead and their memories were not spared from the Pokémon Go invasion. There were reports of Pokémon Go characters being placed in cemeteries in Alabama and Pennsylvania and at the U.S. Holocaust Memorial Museum in Washington, D.C.[2]
Can a Pokémon be a Trespasser?
Within weeks of Pokémon Go’s release, frustrated property owners began bringing lawsuits against Niantic. The claims in those lawsuits fall into two categories:
- Niantic negligently acted so as to cause or encourage Pokémon Go players to trespass on private property. Therefore, Niantic is responsible for the resulting property damage and should compensate the owners for their loss of peaceful enjoyment of their property.
- By placing Pokémon on private property, Niantic, itself, engaged in a “virtual trespass” or nuisance on the owners’ property. In effect, the owners claim that a virtual character, like a Pokémon, can, itself, be a trespasser.[3]
The first type of claim is similar to what the school orchestra conductor did. Niantic did not personally send anyone onto someone else’s property. Nor did the conductor personally play anyone’s instrument. However, just as the conductor encouraged students to play someone else’s violin, Niantic encouraged Pokémon Go players to trespass.
Based upon Court rulings so far, it appears that property owners may have more success in pursuing this claim. The inducement to trespass is akin to “aiding and abetting” in the criminal context. It is easier to analyze than the virtual trespass claim.
Although Pokémon Go’s popularity has waned, the technology it used remains. Therefore, the legal issue will come up again, perhaps with virtual reality headsets or another app in the future.
Evolution of Trespass Law
The law of trespass has evolved over time. It formed the basis for certain environmental intrusions, including sometimes invisible intrusions by noise or noxious gasses. As taller buildings became possible, owners’ air rights and the related right to light also arose out of trespass laws.
In the later part of the 20th century, courts and legislators began seeing virtual “trespass." This involved computers, rather than real estate. Hackers would, using the Internet, enter into others’ computers and servers. Legislatures responded and adopted laws protecting people against unauthorized access to computers.
The Pokémon Go cases present novel questions. Any Pokémon Go trespass is virtual, not dissimilar to a hacker’s trespass. However, the location of the trespass is not a website or computer, but rather, real estate. Unlike an environmental intrusion, where the intrusion may be unseen, but is very real and impacts the real estate, the Pokémon Go cases involve a “trespass” which, although it can be seen, is not real.
Pokémon Go may have gone away, but the ability to commit a virtual trespass on real estate has not. Eventually the law may evolve so that the right to virtual occupancy is an appurtenance[4] to real estate ownership. Until then, real estate owners may need to rely upon remedies against real-world trespassers to protect their right to quiet enjoyment.
© 2018 by Elizabeth A. Whitman
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[1] For more information about how Pokémon go is played, see Sean Holliser, Jeff Sparkman, Caitlin Petrakovitz, Rebecca Fleenor, and Justin Cauchon, Pokémon Go: Gyms, candy, pokeballs and everything else you need to know, CNet (July 5, 2017).
[2] Sara Randazzo, ‘Pokémon Go’ Suit Makes Case for Virtual Trespassing, Wall Street Journal (April 4, 2017); Kartikay Mehrotra, Pokémon Go Triggers Trespass Class Action Suit Against Niantic, Bloomberg (August 1, 2016), reprinted in Insurance Journal; Beatriz Costa-Lima and Mary Hudetz, The ‘Pokémon Go’ Files: 10 Tales of Trespass, Robbery, Murder and More, the Insurance Journal (July 15, 2016).
[3] See Marder v. Niantic, Case No. 4:16-CV-04300-KAW (N.D. California), Complaint filed July 29, 2016.
[4] An appurtenance in real estate law includes both property and rights or privileges which accompany the ownership of real estate. Appurtenances in a general sense may include mineral rights, water rights, air rights, the right to fixtures, and right to access and easements.