Who owns geocaches and their contents?

Question

When someone places a geocache, presumably that person owns the container; it wouldn't make sense for anyone except them (or possibly Groundspeak? I don't think the ToS transfer ownership) to own it.

What about the contents placed by the geocache owner? Probably the cache owner, until someone takes the items?

When someone else puts an item in the geocache, who owns that item? The person who owns the cache or the one who placed the item?

What about trackables? One person buys the item and puts a tracking code on it if it doesn't already have one, then they activate it on the Geocaching Web site. They then place it in a geocache somewhere, and other people take it and move it to other caches. Who owns the trackable?

Answer 1

Let us assume the following facts:

• Alice places a container, log, and some item(s) at some place, publicizes its location and invites others to come and swap objects
• Bob comes, takes the item(s) present in the container and leaves some other item(s) in exchange.
• Carol comes after Bob, takes "everything" (see below) and leaves nothing.
• The police somehow finds out irrefutable proof of all the above, and decides to charge Carol for theft.

Easy case #1: Carol does not know what she is doing

Carol is the farmer on whose land the geocache was placed. She has no interest in or knowledge of geocaching. She removes the container and discards it. (Alternatively, Carol is an eco-friendly hiker, and wants to clean up garbage left by unethical hikers.)

Carol(’s lawyer) will argue that under ORS 164.035 (1)(b) she reasonably believed she "had a right to acquire or dispose of it as [she] did". It seems likely to succeed.

Such a defense would of course be less likely to work depending on certain circumstances - for example, it becomes untenable if the prosecution can show that Alice has an active account on geocaching sites.

Easy case #2: Carol knows geocaching, and she takes the box

My understanding after reading the geocaching.com policies is that whoever places a container is responsible for their maintenance, and if necessary removal. There is therefore little doubt that this person is and remains the owner of the container (and possibly the log), and that anyone familiar with geocaching should be aware of it.

Therefore, Carol took some property with full knowledge that she deprived the legitimate owner from it. She is guilty of the theft of the box at least (under 164.015). The exact status of its content does not matter much for criminal purposes of establishing guilt. (It might or might not be relevant to sentencing.)

Interesting case: Carol knows geocaching, takes the items and leaves the box

I am not a practitioner of US law (let alone Oregon law), and therefore what follows is highly speculative. I think the prosecution can successfully argue that Carol stole the items.

Carol can try to rely on either prong of ORS 164.035 (1).

Prong (b) seems likely to fail. If Carol is aware of geocaching basics, she knows that the social expectation is to replace the items one takes. There might be some debate about what a proper replacement could be, but "nothing" does not fit the bill.

Prong (a) is where Carol argues that the items were abandoned (without owner) and therefore ripe for taking by anyone. The prosecution will try to argue that they were not. I think they have the better side of the argument, (but see above: not an Oregon law practitioner).

I can see two possible arguments from the prosecution:

1. the items were Bob’s all along
2. it is not clear who the items belong to, but the circumstances in which Carol took them are not reasonable

Option 1 relies on the similarity with a shop. Shoppers can physically pick up goods, but the goods belong to the shop until money changes hand at the checkout. The fact that the shop left the items easily accessible to shoppers does not establish the shop’s intention of abandoning them; if one takes items out of the shop with the intention not to pay, that is theft.

In that theory, Bob, by leaving his items in the geocache, is offering a contract of "I give you my items, you give yours to someone else". (Bob accepted a similar contract from Alice.) Carol might refuse to accept that contract, but she has no right to take Bob’s items without compensation. The contract might be vague (how does "equal or higher value" apply exactly?), but there is no doubt that Carol, by leaving nothing, did not follow its terms.

The defense would likely argue that a shop keeps precautions to avoid shoplifting, that unsold products are taken back in storage or disposed of by the owner, etc. - that is, a shop exercises more control over the items than Bob does.

Option 2 would be to say that Bob left Alice, the maintainer of the geocache, in charge of handling the items he left. It might be that Bob kept title to the items, or it might be that he transferred that title to Alice. At any rate, the rest of the story is similar to option 1: Alice (instead of Bob) offers a contract to Carol ("take something from my box, leave something else, and I promise I will let others do the same thing for a reasonable period of time"), Carol refuses and steals the items instead.

A hypothetical would be if Carol walked to the lost&found counter at a train station, and claimed falsely that she had lost a green bag. If Alice (the train station clerk) had found a green bag sooner in the day, and delivered it to Carol, Carol would be guilty of theft; even if nobody really knows whose bag it was, it was certainly someone’s, and not Carol’s.

The defense would likely argue that a mislaid bag is significantly different. The owner of a mislaid bag presumably wants it to be returned (Carol should take reasonable steps so that it happens per 164.065). On the other hand, Bob does not want the items to be returned to him, therefore they are not mislaid (and it does not matter that he wants something else to happen to them).

Answer 2

Starting in the middle of the chain, a person owns their stuff until they abandon it, or transfer ownership. Transfer can be effected as a unilateral gift, or as a mutual exchange, it doesn't matter. So the store owner owns it until he sells it to the customer. You could write a legal document declaring that you transfer ownership of your property to whomever finds it. Or, you could let the finder comply with ORS Ch. 98.

Under the lost property provisions of Oregon law, the first question is, is it worth more than $250 and is the owner unknown? If so, you file a written notice with the county clerk and publish repeated descriptions of the items in the county newspaper (there is a presupposition there not addressed by the legislature). Then in three months, it becomes yours. There are exclusions, such as pre-paid transportation cards, which you simply cannot lay claim to.

If you find multiple unrelated items in different locations, the multiple original owners remain the legal owners until you have published notices and wait 3 months. If you find 8 physical items in a bag each worth $40, you haven't had 8 separate findings, you have 1 finding with value over the reporting threshold.

Whether or not the item-purchaser or the sack-owner owns the item depends on the transaction between the two. Did the purchaser give the item to the bag-holder, or did he lend it with the expectation that it would be returned?

Third parties are mostly irrelevant, so we don't care if some website has a TOS. Except, if a website issues some thing, like a bar code, and keeps track of the code and an inventory list, or simply allows uses of an insignia, then they can impose a duty on the website user. For example, they can require that the person who registers the bag must obtain waivers and transfer papers from any contributors; they can require that the bag include explicit property-ownership related statements.

In that case, the guy holding the bag should comply with those requirements, or face the legal wrath of the website. Contributors still retain their property rights (which may have been extinguished by giving the bag man the goods), and the finder is still only bound by Oregon law (if in Oregon).

However, a tracking code might defeat the defense that the owner of the property is unknown. Suppose that the name, address and phone number of the owner is included in the bag, but you don't know "Paul Jarvis Whillikers". The courts are not unlikely to interpret the statutory expression "unknown" as meaning "not be personally acquainted with". You know who owns the property. A tracking code could be means of "knowing who the owner is", especially if it is clear what the code is (not every random-looking sequence of numbers is an index to a person).

Answer 3

Ownership is not transferred

The container and contents remain the property of whoever owned them before they became a geocache. This is because the clear intention of the person placing the geocache is that it remain there and not that they are abandoning their property - just like someone who parks their carbon a public street still retains ownership. Your stuff is still your stuff even if it is no longer in your possession and even if you don’t want it anymore; my garbage is still my garbage until I lawfully dispose of it.

When an item is swapped in accordance with geocaching norms, that would be a valid contract transferring ownership of the relevant items.

However, if someone unaware of the items being a geocache (or of geocaching in general) were to treat them as litter, they would not commit theft by removing them. This is because they lack the necessary intention to commit the crime.

Someone who took it knowing what it was is legally a thief but the police are unlikely to be interested and the owner is unlikely to sue.