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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?

  • 58
    Is this a serious question? – Viliami Jul 13 '16 at 21:49
  • 13
    Where you the owner of the Pokemon and were you permanently deprived of it? – user3344003 Jul 13 '16 at 23:12
  • 19
    This question is the same as: If someone kills you in a game is it murder? – Lyrion Jul 14 '16 at 7:47
  • 14
    @Lyrion: Your mind makes it real. The body cannot live without the mind. Also, trenchcoats. – Tobia Tesan Jul 14 '16 at 8:49
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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
52

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.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Sep 30 at 1:43
10

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.

  • 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
  • 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 5:24
  • @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
2

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.

  • 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. – The Great Duck Jul 16 '16 at 16:29
1

(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

-2

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".

  • 2
    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. – user3851 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
-5

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"

-5

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.

  • This other answer addresses some of the guesses in this answer. – user3851 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! – The Great Duck 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). – The Great Duck Jul 15 '16 at 0:36
  • @TheGreatDuck That argument is utter nonsense to me. There's no trespassing, no property ownership, or anything. – Zizouz212 Jul 15 '16 at 20:20

protected by jimsug Jul 14 '16 at 11:38

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