The Argument For Augmentation

Augmented reality has come under fire over the past year after the release and success of PokemonGO from exactly who you would expect. No one more serious or important. Milwaukee County, Wisconsin.

In August of last year, Milwaukee's Lake Park became a hotbed of activity for local PokemonGO players and some were less than subtle about their presence.

These "guests" reportedly trampled the park and trashed the area.

Director of the Milwaukee County Department of Parks, Recreation, & Culture, John Dargle Jr, went on record saying not all players were causing these problems. However, a subset of the players have created enough of a problem that Sheldon Wasserman, Milwaukee County Supervisor, proposed an ordinance that would require ar game makers to obtain a permit to use county parks in their apps. This was approved and took effect in January.

According to a spokesperson for the county, no game maker had applied for the permit before this was brought to court.

According to a number of statistical sites, the userbase for PokemonGO dropped significantly from the release of the game to the end of the ear, going from nearly 30 million daily users at its height to just less than 5 million average daily users. This is also something that no other AR game has come close to achieving, considering the nostalgia based fan base of the more than 20 year old Pokemon brand recapturing fans who grew up with the content. This made the stampede a major one-off for both the industry and, subsequently, the Milwaukee County Department of Parks, Recreation, & Culture.

However, this ordinance was passed and as of January 1st the requirements to obtain a permit, among other things, are as follows:

  • Assume liability for the behavior of players.
  • Provide $1,000,000 in general liability coverage.
  • Send a company representative to areas where the game is being played.
  • Providing portable restrooms for every 100 players in the area.
  • Parking fees.
  • Pre-approval of content and content revisions.
  • Taxes on revenue from in-app purchases made in permitted areas.
  • Forced display of the Milwaukee County insignia.

These are some MASSIVE restrictions that, from just one county, could be enough to severely hamper an app let alone if this became a regulation for any area you wished to operate your location based app in. There are 3007 counties in the United States. Games like PokemonGO would not be allowed to play the game, it would just be a screen full of insignias, and the taxes and fees would instantly bankrupt even the largest of game companies. Assuming that no county charges extra fees (because there is a MAJOR cost of living difference between not just states but county areas) then the liability coverage alone would be $3,007,000,000. And that is before taxes, parking fees, portable restrooms per every 100 players, additional liability fees, and hiring and sending out local representatives. This is a precedent that would destroy any company.

Due to these things, in April, Candy Lab (the maker of augmented reality games based in Nevada) filed a lawsuit "out of genuine fear and apprehension that this ordinance, conceptually and as written, poses a mortal threat not only to Candy Lab AR's new location-based augmented reality game, but also to its entire business model, and, indeed, to the emerging medium of the augmented reality as a whole."

Candy Lab's concern is rules of this sort being adopted elsewhere in the US and causing the aforementioned problems, bankrupting companies in the AR games industry.

Legislators at a national level have begun taking notice. November, 2016 the Senate Committee on Commerce, Science, and Transportation held a hearing on augmented reality and May, 2017, 5 US Representatives formed a Congressional Caucus on Virtual, Augmented and Mixed Reality Technologies for the 115th Congress.

Candy Lab's latest augmented reality game, Texas Rope 'Em, sets players in a game of poker that requires them to visit various locations to collect virtual cards.

Milwaukee County filed May, 31st to deny Candy Lab's request to block the ordinance and advanced several arguments, including claiming first and foremost that the game Candy Lab has created doesn't qualify for protection under the First Amendment. "Texas Rope 'Em does not convey any messages or ideas, but rather is a simulated gambling game which is not entitled to First Amendment protection (and which is also illegal)."

In 2010 the Supreme Court decided in Brown v Entertainment Merchants Association, finding: "Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And 'the basic principles of freedom of speech ... do not vary' with a new and different communication medium." However in the filing by Milwaukee County the claim "Brown does not say that every video game (whatever that means) automatically enjoys First Amendment protection." They continue, arguing that Texas Rope 'Em "lacks the characters, dialogue, plots and social messages that the Supreme Court found significant."

Milwaukee County's legal representatives make various other arguments challenging Candy Lab's right to bring claim, alleging lack of harm and lack of standing, and their last argument is purely about money. "Finally, Milwaukee County's need to preserve the integrity of its parks greatly outweighs Candy Lab's bottom line," it states.

Brian Wassom, a partner at Warner Norcross & Judd who is representing Candy Lab, said in an interview with The Register, that "In a word, I think their argument is terrible," and he continues saying "Obviously, it's legitimate for the county to want to protect its parks ... But this is an illegitimate way to go about it." Wassom recommends the county ticket or fine individual offenders instead of bypassing them and banning content.

Wassom actually wrote a book over the legal implications of augmented reality and says that he expects to see more litigation related to trademark, copyright, privacy, personal injury, and liability issues as the technology proliferates. "Disputes follow money," he said.

On Monday, without yet ruling on Milwaukee County's motion to dismiss the case, the judge directed both parties to prepare for a trial on April 16, 2018.

Milwaukee County counsel Margaret C. Daun offered the following statement: “It is not the intent of the county to eliminate location-based augmented reality games from its parks, but only to minimize negative consequences while encouraging activities that bring residents and visitors to our parks system, which is widely-recognized as one of the best in the nation. The county appreciates that Candy Lab has raised important issues in its lawsuit concerning the constitutional protection that should be afforded to augmented reality games. To that end, the county is exploring ways to potentially modify the ordinance and/or the permitting process, if appropriate.

“Importantly, for any county, but particularly one like Milwaukee, which faces significant fiscal constraints, it must ultimately be the case that augmented reality games are susceptible to regulation. If otherwise, then public property, like parks, which should be available for the use and enjoyment of every citizen, will be effectively co-opted by private companies to subsidize their for-profit enterprises, on the backs of taxpayers, who will be forced to foot the bill for the cleanup and other significant expenses that will result as public parks or other public areas are turned into limitless ‘augmented’ game boards.”

On July 20th, US District Court Judge JP Stadtmueller granted plaintiff Candy Lab's request for a preliminary injunction, preventing the Milwaukee County ordinance from being enforced while the case is being heard.

Judge Stadtmueller observes in his court order that the ordinance "does not appear narrowly tailored to serve the interests it purports to promote," and cites case law saying state regulation cannot "burn the house to roast the pig." Furthermore, he characterizes the rules as strange and unsophisticated, pointing to the way they treat Texas Rope 'Em as an event when the game isn't designed to be played at a specific time or place.

The judge suggested the county would do better to penalize players who misbehave, rather than shifting the burden to the game makers.

In a phone call with The Register, Wassom expressed satisfaction at the ruling. "We could not be happier," he said. "It's exactly what we asked for. It's a great affirmation of this medium of AR. And I think it will go a long way to easing people's fears that governments will be draconian in how they regulate it."





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