When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance

Abstract

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon Go in settlement of nuisance and trespass claims brought by a nationwide class seeking injunctive relief from the placement of virtual Pokéstops and Pokémon Gyms (“Gyms”) on real property. This article is the first to address this landmark settlement and proposes that future developers and creators seeking to avoid similar liability exposure implement self-regulatory practices, such as Value Sensitive Design, to create human values-based frameworks within which they can create and advance technologies. The societal need and social impact of such self-regulation is clearly illustrated by emerging litigation seeking to hold virtual-world actors responsible for real-world consequences utilizing common law tort theories. In the absence of legislation, as case law develops, self-regulatory frameworks like Value Sensitive Design are essential to create constructs within which creators can develop technologies that consider human values, address civic concerns, and avoid lawsuits, while still achieving commercial and technological objectives.