Game Maker Sues Milwaukee Over Permit Requirement To Make Augmented Reality Games

from the virtually-real dept

One of the great stories in unintentional consequences in technology in the past few years has been Pokemon Go. The augmented reality game application has resulted in all kinds of legal action and consequences, including New York declaring playing it to be a sex offender parole violation, lawsuits stemming from players of the game wandering onto private property and annoying the residents there, and even the DOD releasing guidelines for safe Pokemon hunting.

What Milwaukee did in the wake of this legal activity made less of a media splash, but that appears to be changing. The Midwest city decided to add a city ordinance requiring a permit from any augmented reality game makers that made use of locations within the city. The ordinance reads:

Virtual and location-based augmented reality games are not permitted in Milwaukee County Parks except in those areas designated with a permit for such use by the Director of the Department of Parks, Recreation, and Culture. Permits shall be required before any company may introduce a location-based augmented reality game into the Parks, effective January 1, 2017. The permitting application process is further described on DPRC’s website for companies that create and promote such games. That process shall include an internal review by the DPRC to determine the appropriateness of the application based on site selection, protection of rare flora and fauna, personal safety, and the intensity of game activities on park lands. Game activity shall only occur during standard park hours, unless otherwise authorized by the DPRC Director, who has the authority to designate special events and activities within the Parks outside of the standard operational hours.

If that seems overly broad and restrictive to you, you're not the only one. The problem with an ordinance like this is it directly inserts the city between the speech rights of an app developer and users of the app. Games of this nature have long ago established themselves as both works of art and speech, meaning free speech protections apply. Prior restraint on free speech has a lofty legal bar over which to vault.

In fact, that is the exact argument made by an app developer, Candy Lab AR, makers of the augmented reality app Texas Rope 'Em, when it sued Milwaukee.

According to the complaint, the "restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. The Ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague such that Candy Lab AR does not have notice as to what speech must be approved by permit and which it can express without seeking a permit."

Much like Pokemon, Texas Rope 'Em has players traveling to real world locations to collect assets -- playing cards, in this case -- in order to further progress in the game. Augmented reality, though becoming something of an industry buzzword, is actually a long-established technology, used in everything from map applications on phones to games. Candy Labs is asserting that the ordinance requiring a permit prior to the game being used in the city amounts to prior restraint on its speech. And it's quite difficult to see how that isn't in fact the case.

We're talking about public land, after all. Augmented reality makes use of public locations and public data all the time. Broad ordinances looking to curb its use in the face of its rise in popularity face headwinds of all kinds, but it seems the question of its constitutionality may torpedo this one entirely.

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Filed Under: augmented reality, milwaukee, permits, pokemon go, texas rope 'em

Companies: candy lab ar