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Does something that is virtually located on your property like in Pokemon GO incur any kind of property right for the property owner?

feetwet
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Mr. A
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    Is this a serious question? – Viliami Jul 13 '16 at 21:49
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    Where you the owner of the Pokemon and were you permanently deprived of it? – user3344003 Jul 13 '16 at 23:12
  • @user3344003 That is addressed in my answer below. –  Jul 14 '16 at 00:01
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    This question is the same as: If someone kills you in a game is it murder? – Lyrion Jul 14 '16 at 07:47
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    @Lyrion: Your mind makes it real. The body cannot live without the mind. Also, trenchcoats. – Tobia Tesan Jul 14 '16 at 08:49
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    I think you should charge the game creators rent fees for dumping Pokemon on your property without your permission. – MonkeyZeus Jul 14 '16 at 18:16
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    This does bring an interesting question as more augment reality applications come to light. Seeing that you don't own the pokemon I'm not sure you'd have much to stand on for the theft charge... but treaspassing should be pretty easy to prove. – Matthew Whited Jul 14 '16 at 18:29
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    @Viliami It's actually a really relevant and interesting question outside the context of this particular game, like the comment above this one mentions. The topic of virtual objects on real property in augmented reality is a pretty new topic. – Jason C Jul 14 '16 at 21:11
  • Well, no, simply because if Alice puts her Whatever on Bob's garden without and Cecile steals it, it wasn't stolen from Bob, it was stolen from Alice. The fact that she put it into Bob's garden without permission does not change this. – yo' Jul 14 '16 at 21:51
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    @Viliami I think it is a joke question for fun. It got 10K views so I think it work as intended –  Jul 15 '16 at 08:00
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    Actually, the issue is not nearly as simple as these answers suggest. Putting a pokemon on your property could reasonably be expected to interfere with your quiet enjoyment of the property, which is a property right. Similarly, creating an attractive nuisance (anything that lures others onto property where they could come to harm) interferes with property rights and creates liability. – David Schwartz Jul 15 '16 at 09:01
  • @Lyrion : No, it's not the same. It can be an important precedent in case virtual reality games and later non-game applications became more commonplace in the future. Once goods in that "alternate reality space" get monetary value and can be bought and sold, it might become important to know whether the place it was stolen from actually overlaps the "real-space" property of someone. – vsz Jul 15 '16 at 12:54
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    In today's news: Pokemon Go features [are at least perceived by some experts to] change real estate property values and saleability. http://www.cnbc.com/2016/07/14/how-pokemon-go-could-help-you-sell-your-house.html – WBT Jul 15 '16 at 13:21
  • @Dawn The question doesn't ask whether it's theft. The titles uses the word "theft", but the question itself makes clear that the word "theft" is meant informally to include anything that could "incur any kind of property right for the property owner". This is the same way people often talk about copyright violation as "theft". It's not legally theft, of course, but that doesn't mean it doesn't violate property rights. – David Schwartz Jul 15 '16 at 18:24
  • Imagine there was a deer on your property and somebody shot it and dragged it off your property. Never mind the trespassing aspect of it. I assume you had a property right in that deer, even though it may wander from property to property? I suppose I should have asked this question first for live animals. But then there is the further question. Does the virtual interaction with your property have any legal aspects to it? One thing I did not realize before asking my question was that pokemon are still available for catching once you catch one. Assume they weren't though... – Mr. A Jul 18 '16 at 23:12
  • @Mr.A Do you really mean to ask a question as broad as "Does the virtual interaction with your property have any legal aspects to it?" (Because virtual interaction with a property can have many legal aspects to it... defamation, fraud, conspiracy, ...) Or do you mean to ask the more narrow question "Does the virtual interaction with your property give you any legal ownership rights over it?" –  Jul 18 '16 at 23:31
  • @dawn - I mean, do I own the idea of my property in addition to the actual property? If so, if there is a pokemon on the idea of my property, is it mine? – Mr. A Jul 18 '16 at 23:35
  • @Mr.A Thanks for clarifying. That last comment makes your question very clear. –  Jul 18 '16 at 23:40

7 Answers7

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In this answer, I address title question: "If someone catches a Pokemon that is on my property, is that theft?"1

The Pokémon is an entry in a database, presented by Nintendo to users in their mobile app and can be included in a user's collections after that user completes some in-game actions. It isn't your property. It isn't even their (the users') property.

Further, a Pokémon appears for all users can be captured again and again by multiple users until it disappears for all users. One user capturing a Pokémon doesn't make it unavailable for others.

The Pokémon doesn't "become subject to" any property rights of the owner of the real property that it happens to be virtually overlaid on. Said another way, it doesn't "incur" any of their property rights. Capturing it in-game is not theft.

1. The question in the question body is "does [a Pokémon] incur any kind of property right for the property owner". Incur means "to become subject to". That is different than the broader verb "implicate". This question does not ask (and this answer doesn't answer) whether the Pokémon can implicate the property owner's property rights (e.g. via attractive nuisance, trespass, etc.). Some of that is addressed at a separate question.

Community
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The Pokemon was never in your property! It was displayed on a map as though it was on your property, accessed by feeding the coordinates of your property through the app along with other game data. You do not own your coordinates. The fact that the game encourages people to physically visit the coordinates is an entirely separate issue.

wedstrom
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    This, this and this. No matter whose the Pokemon is and how it got to your garden, it's not yours so it can't be stolen from you. – yo' Jul 14 '16 at 21:53
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    It doesn't "encourage people to physically visit the coordinates" unless you're talking about Pokestops, which are hardly ever on private property. You could be at any coordinate and there's a chance a Pokemon will appear. – Insane Jul 15 '16 at 05:24
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    @Insane When someone walks by and see's a Pokeman "in" your yard, that's encouraging you. Maybe that same Pokeman could spawn in a hundred other places, but someone just got a gray silhouette and they are on the hunt... – wedstrom Jul 15 '16 at 15:32
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    Unless your property is quite a bit larger than most private properties, there will be no need to actually enter it to capture a Pokémon which appears to be present there -- a public right-of-way (aka a road or sidewalk) will normally suffice. – John Hascall Jul 15 '16 at 16:15
  • So someone entering my garden to catch a Pokemon might be trespassing, but even if they "take" the Pokemon it's not theft because it was never an object in my garden. – gnasher729 Mar 14 '22 at 19:05
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No. In addition to the points made in other answers, you do not have any property rights in the virtual locations of the game. They are a service that is provided to you under a contract with the game operators which allows them to terminate the service at will. The fact that they are mapped by a mobile client so that they appear to coincide with real-world locations is not relevant: you have no rights to specific locations within the game's database, just as you have no rights to tell Google (for example) not to display specific information if somebody clicks on your property's location on Google Maps.

Jules
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  • If it was a virtual map from your own home that would be true. But these are apps played in the real world. Access to the property without permission of the owner would be treaspassing. – Matthew Whited Jul 14 '16 at 18:33
  • it might depend on the country. In Europe there are already laws being designed, for people to be able to limit Google on what it is allowed to display about them. – vsz Jul 15 '16 at 13:49
  • @vsz - ok, but those are about privacy, not property rights. – Jules Jul 15 '16 at 17:11
  • @Jules However, if it were a private institution and large enough in size such that it is obvious the pokemon are in that property, Id imagine the property owner could complain that it is on their property. It would be like a phone provider making an update that is only available in theater lobby. It just wouldnt be appropriate and could cause damage to the owner, especially if it incites large amounts of non-paying traffic. – user64742 Jul 16 '16 at 16:29
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(Since no jurisdiction was specified, I can answer this under Dutch law)

Pokemon Go may be a game by Niantec/Nintendo, but that does not necessarily remove your property rights. The essence of property rights is the exclusive control over anything unique and identifiable. Virtual goods are not exempted, as confirmed in jurisprudence. Gamers can own in-game goods, they can be defrauded out of those goods, and that is potentially even criminal fraud. In particular, the game developer can give property rights to one gamer, to the exclusion of others. Even if the game developer held the right to revoke such rights, this exception only applies to the game developer and not third parties.

Now in this case, there is no exclusive control over the Pokemon. Without exclusive control, there are no property rights, and there cannot be theft.

Exclusive control in this case does not mean sole ownership; there might be multiple owners. To keep in game terms, a clan or guild might have ownership of items that non-members cannot control. However, other items in the world may be first-come first-serve. Those would be an example of items not under exclusive control

MSalters
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This is a new and emerging area of law and there are numerous potential legal theories that could be advanced. All of this is untested.

One thing is clear though, it does not meet the technical definition of theft. Theft requires intending to permanently deprive someone of personal property. That simply doesn't happen here.

However, property rights extend well beyond just the right not to have your property stolen from you. Things that interfere with your enjoyment of your property or affect its value can also give rise to legal actions because they also implicate property rights.

A Pokestop could be an attractive nuisance. It may attract children to your property where hazardous conditions could be present. Generally, a warning is not sufficient to mitigate liability for creating an attractive nuisance. But I don't know if there's even been a case where one party created an attractive nuisance on another person's property without any physical trespass.

Does putting Pokemon on a property virtually change its value? There can be liability for defaming property where that affects its value. Perhaps the people attracted to the Pokemon or Pokestop make the property less desirable.

Numerous other legal theories are possible and all of this is presently untested.

But it's definitely not going to meet the legal definition of "theft".

David Schwartz
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    This answer (1) overstates the alleged ambiguity of the law and (2) clearly misstates the doctrine of attractive nuisance. – Patrick Conheady Jul 18 '16 at 12:15
  • @PatrickConheady Can you be more specific? Do you not think that a Pokemon or Pokestop can attract children to a hazard? – David Schwartz Jul 18 '16 at 14:22
  • @PatrickConheady Or I'll be more specific -- Why is a pokemon at the edge of a cliff not an attractive nuisance? – David Schwartz Jul 18 '16 at 14:55
  • @DavidSchwartz That is best asked as a separate question in order to get a complete answer, but to start, attractive nuisance doctrine applies to the property owner of the cliff and relates to child trespass. The fix (fencing off the cliff, for example) must be a small burden compared to the risk of the hazard the cliff imposes. The risk (the cliff) must not be discoverable/realized by children that trespass (i.e. the risk is in a sense "hidden" to the child trespassers). There are more elements. I think all or most of these elements are not satisfied by the cliff example. –  Jul 18 '16 at 18:46
  • @Dawn The classic attractive nuisance is a pool. A pool is in no sense hidden. The doctrine applies directly to the property owner but indirectly to someone who creates an attractive nuisance on another's property. The cliff example may not be a perfect one, but it's not difficult to imagine such cases. I know of no case where someone created an attractive nuisance on another's property without coming onto it. So this is an untested area of law. I can easily see arguing that putting Pokestops on property whose safety is unknown creates liability and even infringes the property owner's rights. – David Schwartz Jul 18 '16 at 19:25
  • @DavidSchwartz The hazard posed by the pool is "hidden" to a sufficiently inexperienced child ("hidden" is a paraphrase of a more complex standard - this is why a standalone question would be better). The doctrine does not apply indirectly to somebody who creates an attractive nuisance on another's property. See Restatement of Torts Section 339 and California's Peters v Bowman. The Restatement makes it clear that the possessor of the land must him/herself maintain the hazardous condition. In states where "allurement" is also an element, the allurement has to be maintained by the possessor. –  Jul 18 '16 at 19:38
  • @Dawn There's not enough room to discuss this here, but I don't agree with your assessment. Cases like Peters v Bowman are easily distinguishable because the hazard here was created, not natural. Also, those cases deal with whether the landowner is liable, which is not the issue here. (The issue here is whether Niantic is liable to either the landowner or someone injured.) – David Schwartz Jul 18 '16 at 21:37
  • @DavidSchwartz Generally courts (at least in California) have tended to see the distinction between created and natural as a red herring and focus more on whether the child could be expected to be aware of the nature of the hazard. I understand that that the issue you raise is about Niantic's liability, not about the possessor of the hazard, so attractive nuisance doctrine is not implicated. Peters v Bowman was just an example, especially to show discussion of whether the child was aware of the nature of the hazard. The main points are more clearly expressed in section 339 of the Restatement. –  Jul 18 '16 at 21:40
  • @DavidSchwartz In any case, my goal is not to convince you. I'm just giving you information. Do with it what you want. I will leave this discussion now because I don't need to say anything more about the attractive nuisance doctrine. There's been enough written about it in the Restatement, case law, and law review articles. –  Jul 18 '16 at 21:54
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The other answer here disproves the OPs premise that Pokemon are a physical entity in the world and that they can be property. This answer is instead going to work under the premise and disprove the supposed logic that followed from it.

Let me ask you a question. If someone leaves a box of junk in your backyard because they need somewhere to store, does it automatically become your property? Nope. Even if they no legal permission to put it there, they have 30 days to retrieve their property.

Using this case with the Pokemon, the property does not own the pokemon. Therefore, he cannot claim it was stolen. Technically he cannot give it away either.

Of course, the Pokemon exists for all users so one cannot steal it from another person. So regardless of country, jurisdiction, or rules regarding video game item theft, you cannot be interpreted as stealing the pokemon.

user64742
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  • This other answer addresses some of the guesses in this answer. –  Jul 13 '16 at 20:10
  • That is a different question and is not relevant. Please do not try to claim this is a duplicate post! – user64742 Jul 13 '16 at 20:12
  • Nobody is claiming it's a duplicate, but the answer is not a very clear one to this question. – cat Jul 13 '16 at 21:44
  • @jimsug it is just a well crafted argument on why I see it is legal. Its legal because it is not the ownerrs property, therefore it is not his discretion to sue. If anything, pokemon go is illegally storing property. Now does my answer make sense to you? (See my report of my post for a more in-depth explanation). – user64742 Jul 15 '16 at 00:36
  • @TheGreatDuck That argument is utter nonsense to me. There's no trespassing, no property ownership, or anything. – Zizouz212 Jul 15 '16 at 20:20
  • @Zizouz212 I am not saying there is. The op is making the assumption that a Pokemon is physically in world. I am stating while it is not in the world (as the other answer stated), if we were to assume it is a physical entity, then the legal circumstance still would not be what the op was thinking. TLDR: The other answer disproved the premise of the asker's logic, whereas I disprove the logic of the asker under that premise. Does that make sense? – user64742 Jul 15 '16 at 21:02
  • @TheGreatDuck I don't see much sense in that, nor your answer, nor your comments. – Zizouz212 Jul 15 '16 at 21:03
  • @Zixouz212 shrugs. I don't always make sense. This must be one of those times. – user64742 Jul 15 '16 at 21:05
  • @Zizouz212 I fixed my answer a bit. It should make sense now. – user64742 Jul 21 '16 at 01:52
  • That analogy is incredibly moot. Pokemon is never property to begin with. – Zizouz212 Jul 21 '16 at 01:55
  • @Zizouz212 the asker built off that premise and at the time, the other answer claimed pokemon is not property. The only other answer left to give would be "your premise might be wrong, but so is the logic you followed it through with". – user64742 Jul 21 '16 at 01:59
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Using common sense, I dont think it would be wrong or illegal to catch a pokemon which sits on another property, unless it is marked as a restricted area and marked so with a court order, say, with a board that reads: "Anyone trespassing this area will be prosecuted"

anilreddy12001
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