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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Comments on “Game Maker Sues Milwaukee Over Permit Requirement To Make Augmented Reality Games”

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Yes, I know I'm commenting anonymously says:

Am I reading this wrong?

quote: “Permits shall be required before any company may introduce a location-based augmented reality game into the Parks, effective January 1, 2017.”

The game maker does not introduce the game into the parks, it is the player who takes the game there.

Juris_3 says:

Re: secondary laws

… the bigger picture here is that legislators routinely “create” new, secondary crimes out of thin air… to more easily “enforce” prohibitions against the ‘primary’ behavior they are really after.
This is a corrupt, but widespread government practice across America.

Ordinary trespassing/property-damage laws adequately handle this trivial Pokemon problems, but arrogant law-makers prefer broader powers to control the citizenry.

Consider Open-Container-Crimes in automobile laws as a common example of unjust “secondary” laws. The primary crime is DUI, but easier to prosecute even the slight suspicion of a DUI… by criminalizing the inherently non-crime of having an old empty beer can in the back floor of a car.

Failure to report your bank transactions (> $10K) to the Federal government is a crime — Why ? … because the Feds want to stop illicit drug use by individuals.
There is absolutely nothing inherently criminal about you sending a $10K check to your daughter for her wedding– but it’s a crime if you don’t promptly tell the Feds. Feds are trying to stop ‘drug trafficking’ (a secondary crime they created); to help that enforcement they created ‘money-laundering’ as a tertiary crime; to help that enforcement they created a 4th Federal sub-crime of not reporting large bank transactions. The logic and practice are totally absurd.

Milwaukee law makers are merely following standard corrupt U.S. legal policy, in place at all levels of American government. They create crimes from thin air.

Anonymous Coward says:

Re: Re: secondary laws

“but arrogant law-makers prefer broader powers to control the citizenry.”

should be

“but law-makers are constantly assailed and requested to create these laws by, needy outlaw things I don’t like, citizens.”

The root of all problems in America is the electorate. The more people like there are that cannot accept responsibility the more shit falls apart. Next time place the blame right the fuck where it needs to be. On the people that voted these fucks into office!

Anonymous Coward says:

Re: Re: Re:2 secondary laws

“And who exactly did YOU vote for last November”

As bad as things are right now, it does not matter who you vote for, as long as it it not an R or a D. A message must be sent, and until that message is sent we will keep getting these candidate types. Guess who I need to help me with that message? The Electorate. It does not matter if I propose a new party, propose change for an existing party, or proposed the destruction of a party I will always need fellow citizens, which first requires educating them. And they are currently not interested in that education.

“Help us learn who the non-f_cks are that you fully trust.”

I have been, by telling you guys what the Constitution means in plain and simple English and directly according to the founders and their writings, yet they are rejected most of the time because they do not fit into either Political Party’s sycophancy.

For example, Obama had a constitutional responsibility to bring prosecution against the states where they allowed the police to just shoot people at will and violate due process. Obama did nothing, proving he was a shit president, and people still love him for it. A Liar’s Liar and he is worshiped.

Trump, makes it clear he is greatly in favor or a Police State in DIRECT contravention of the Constitution. The Declaration of Independence and US Constitution clearly state that the purpose of a Government is to Protect Liberty before any other thing and a “Police State” & “Regulatory State” stand diametrically in opposition to that purpose. A Terrible liar and people still love him for it, but at least he is not worshiped so that is a bonus.

Until at least a majority of my Fellow Citizens desire the Truth, I have no one to vote for because each of you will ensure that any candidate I or a “sane” citizen might like will be purged from the system.

Right now insanity is the norm, and anything sane now appears insane. Right now corruption is the norm, anything that is not corrupt scares people because they are afraid of change. People also welcome corruption because their local corruption committee gets them things and that is fine because that corruption serves them. They only complain about the corruption of those “other” guys because their corruption does not service them. This explains why reps are well liked in their local areas, but majority hated by people outside of them!

So help you learn who to trust? I try, and will continue to try, but first you and many others need an extensive history and constitutional lesson first. Otherwise, I cannot “help” anything.

Al (profile) says:

DPRC: misguided but

While you raise valid points (free speech impediment, public land), DPRC also has a valid point wanting to protect the few green places in cities. True, the ordinance is overly restrictive. It would be better to create hefty fines and imprisonment for environmental damage.

Oh wait, forgot who is president for a moment -_-

Anonymous Coward says:

Re: DPRC: misguided but

“It would be better to create hefty fines and imprisonment for environmental damage.”

Oh, that’s gonna go well…..

Happy Player: “Hey, I caught a Pikachu!”

Cop: “You’re under arrest for playing an AR game without a permit.”

Confused Player: “WTF?”

Cop: “Ok, we’ll add resisting arrest to those charges then. Hope you like the extra 3 years in addition to the 10 you’ll spend for illegal AR gaming, and the $5000.00 police environment protection fine that goes with it.”

Murderer: “Wow, you got some big cuffs on you, I killed 10 people, what did you do?”

Convicted player: “I played an AR game.”

You’d better hope there’s not too many NIMBYs near you, with that mindset, AR gaming might just be punishable by death….

trinsic says:

Re: Re: DPRC: misguided but

Dude are you really that dense that you cant see the problem with augmented reality and how it may effect other people around you?

This the same problem with google glasses, your rights to do something stop when they interfere with someones else’s rights to not be interfered with.

Anonymous Coward says:

Re: Re: Re: DPRC: misguided but

So what rights on public land of yours did we violate by playing a game? Last I checked, “freedom of no players” was not a right.

Yes, some people may walk out into the street while playing. That’s their fault however and they should be held accountable for it, not ban the entire genre because of a few morons. The same goes for the ecological crime in the article. If they wear a hole into the ground because of the constant traffic, make them pay for the repairs. Also, just a heads up, erosion happens anyway given enough time. If there’s specific activity that’s causing an increase, increase the funding for repairs or make the abusers pay for it. The former alone will keep people away enough that the pop rates in the game will start going down due to fewer people willing to be in the area for that purpose. (Most of these games currently populate things in densely traveled areas. So a public park is a prime target.)

The problem with Google Glass was the abuse of the camera more than anything. Too many idiots decided to take pictures of things that they shouldn’t and look at the result. No more Glass. I guess we should kill the hopes of robotic eye implants for the blind then. Don’t worry though, the robocops will have them to enforce your will on others all the same.

If anyone is misguided, it’s you for knee-jerking to the banhammer.

Michael (profile) says:

Re: DPRC: misguided but

They raise absolutely no valid point. This is public land. If there are restrictions on it’s use, they should in NO WAY be tied to augmented reality games. If they are trying to protect the lawn, put up a “keep off the lawn” sign and enforce the rules for everyone, not just the people playing a game.

By the way, there are already fines for environmental damage in many public places. There is a park near me that will fine you $96 if you care caught picking a daffodil. That’s fine, but don’t charge a game maker and require them to get a permit because one of their users might pick one – that’s just plain stupid.

orbitalinsertion (profile) says:

Parade, event, etc., permits seem awfully restrainty in retrospect then.

Maybe game-makers can pay for extra rangers and make sure they don’t place markers in or near sensitive locations where someone in a hurry to get there first won’t violate sanctuary areas.

I’d like to graze my sheep for nothing on public lands, too. Maybe a Pokemon Go standoff…

Perhaps it is overly broad. Perhaps they should simply designate normal high traffic areas only are allowed and see if that is less prior restraint. Like any law, it has potential for abuse. I am not really seeing what is overly broad in itself at the outset, though. It seems to state exceedingly real and reasonable concerns, which are borne out by history and human behavior. If things like geocaching were ever that popular, at scale, there would have been extra laws like this already. If anything, prior laws should already apply here and this regulation is unnecessarily over-specific, like driving and texting laws. But then you would have the "oh i didn’t know this applied to my gig" excuses.

Yes, they should probably test that law rigorously for constitutionality and all, and patch it appropriately, so it can be properly enforced so anyone making use of the park is treated equally.

PaulT (profile) says:

Re: Re:

“Parade, event, etc., permits seem awfully restrainty in retrospect then”

Not really. If you can’t tell the difference between a persistent but random game world that different sizes of groups may enter at non-specific intervals and specific pre-planned one-off events for large groups of people, then I’m not sure what to tell you.

“someone in a hurry to get there first won’t violate sanctuary areas”

They can no more control human stupidity and selfishness than the lawmakers.

“Perhaps they should simply designate normal high traffic areas only are allowed and see if that is less prior restraint”

You really don’t seem to understand how these games work.

“If things like geocaching were ever that popular, at scale, there would have been extra laws like this already”

Not really. Geocaching is a totally different thing, not least because it uses physical items in pre-chosen locations. Any laws coming from that would probably have been to ban it because people having been trained to be scared of unexpected boxes than anything specific to a location. A Pokemon randomly spawning in a location for 30 minutes, completely invisible to anyone not playing the game, really isn’t the same thing at all.

tl;dr – your comments might be sound in principle, but they seem to be based on a complete misunderstanding of the mechanics and issues at question.

“so anyone making use of the park is treated equally”

But, you’re advocating unequal treatment of game players to achieve this? Interesting.

orbitalinsertion (profile) says:

Re: Re: Re:

“If you can’t tell the difference…”

I can, and from the perspective of protected areas, it doesn’t much matter if they are all there at the same time or not. It’s a persistent increase of traffic, some percentage of which will not play nice. One could, i suppose, ask game developers to be a bit thoughtful about location placement but yeah sure whatever. It would be better if everyone worked out these things in advance, but that is too much work. Just like it is too much work for governments to have more reasonable rules and then enforce them after damage has been done. Fines don’t undo damage.

“They can no more control human stupidity and selfishness than the lawmakers.”

No, but they are damn well aware of human behavior or they wouldn’t be good at making and selling games. And they can stick in locations that would minimize impact. They can easily increase opportunities for stupidity and selfishness by placing game locations without thinking. Of course you won’t stop hard core idiots, but you can remove the incentive for bad shortcuts by the merely careless, or outright prohibited locations.

“You really don’t seem to understand how these games work.”

Perhaps. Perhaps not. But i don’t understand that response.

Geocaching: It has nothing to do with unexpected boxes (heaven forbid they have lights or Moonites), and everything to do with bringing potentially damaging traffic to some locations because they are cool or hard to reach. (Or dangerous, etc.) The only difference is the number of people trampling natural or protected areas.

I don’t see how it is unequal treatment of game players to not direct them to or through the protected spaces. I thought the problem was with “free speech” of developers anyway. I am sure there will be some ridiculousness in the permitting process, but i would work on fixing that. It would be better if it were free and “hey come work with us on this so everyone has a good time and our public and sanctuary spaces are preserved”, but the force of law is helpful in getting people to come to the table, or just not put markers in the park at all so it doesn’t get trashed. (Which is what they probably hope for, so i would totally file for a permit just to make them do their part of the work too.)

PaulT (profile) says:

Re: Re: Re: Re:

“It’s a persistent increase of traffic”

No, it’s not. The majority of these games randomly generate areas. With Pokemon, the gyms and Pokestops are permanently placed (and they have facilities available to request these moved if necessary). Everything else is randomly generated and transient. You seem to think you’re complaining about a decision made deliberately by human beings. You’re actually complaining about the random output of an algorithm.

Again, you don’t seem to understand how the things you’re whining about actually work. Educate yourself before doing so, and you’ll find your complaints are taken more seriously.

“Geocaching: It has nothing to do with unexpected boxes”

Well, apart from the unexpected permanently placed boxes.

Seriously, learn what it is you’re complaining about before doing so, it helps your argument.

aerinai says:

Re: I don't think you would like the world you are creating...

You are blaming the app developer for the local user’s actions. Do not confuse the two. If I take your argument at face value, you would also want Google Maps / Waze to be shut down without ‘prior permission from the local municipality’. They augment reality by overlaying streets with colors or mark objects on a map that updates as you move around… much like Pokemon Go…

Developers of the AR do not need to ‘program’ things specifically… they just use a random generator and things ‘show up’ there. And given that developers are creating AR games ALL OVER THE WORLD… it’s not their responsibility (and in fact impossible) to know every municipalities set of archaic and overly broad rules… And trying to make a system that ‘blocks’ these areas does nothing but increase costs to small companies, which then limits the ability of all but the richest to compete and create.

Good for this company for suing Milwaukee and their moronic policies.

This is a classic example of blaming the ‘tech’ for problems and not the person using it…

orbitalinsertion (profile) says:

Re: Re: I don't think you would like the world you are creating...

I am (potentially) blaming the app developer for not giving a shit, as they do. I am not confused. Everyone likes to pretend that providing tools and opportunities have no inherent consequences besides the direct and purportedly intended ones, and the external costs are just too bad for someone or something else.

Yes, Google Maps and Waze should be shut down also, because reasons, apparently.

PRNG is now the excuse? I don’t think RNG has any First Amendment rights. (It’s also the laziest, dumbest thing about games in its overuse, and horribly implemented in some games, but that’s a gaming critique and irrelevant – except in that poor placement by PRNG instead of a human doesn’t change that it will direct people places they shouldn’t be, or responsible people don’t get a chance at that location… seems fair.)

If you are responsible you don’t need to know so many archaic (or brand new) or overbroad (or highly specifically referring to parks) rules. I see this as much larger than AR, which is why i don’t much refer to it, even if the city targeted it specifically (which is kind of dumb, it could be included as an example or whatever). As for barriers to small companies, i am not sure larger ones would bother with an area either, but i don’t see this so far as particularly onerous, and the “small companies / emerging markets / nations” argument for “we need to be able to do thing X (or for a while longer) which has negative consequences to compete with the Joneses” is overused and thin.

I don’t remember negating any blame for anyone misusing anything. But regardless of whether some jurisdiction makes it a legal responsibility or not, there are ethical culpabilities involved with a lot of things that are easily foreseeable and largely preventable with a little consideration, which we claim don’t exist. So when you have the power to command few hundred people to go running to some spot today, exercising some care isn’t a bad thing. Maybe there is a better way to achieve this, but it isn’t going to be ignoring the consequences of an AR game or something similar which you can try to mitigate in advance, as opposed to flash mob (is that still a thing?) in the biological sanctuary or some other more spontaneous event. It was already argued above that this planned (randomly or not) increase in traffic is not like a parade or event (in a limited, sensitive area), but i don’t see arrival intervals of bits of crowd (they are acting as one, connected by the game) as particularly germane to the trampled species.

Sok Puppette (profile) says:

Re: Er...

Hey, I will give you 10 magic points if you go over to the nearest park and stomp the flower beds. You can even tell everybody you have 10 points.

That’s a sincere offer. I’m making it for snarky reasons, but I truly promise that if you go do that, I will award you 10 points. Think of it! 10 points! Awarded by me!

Now, if you go stomp the flowers, who should the law hold to account?

orbitalinsertion (profile) says:

Re: Re: Er...

Me, if i do it. You, for making the offer to 2,000 other people who also did it. But that falls under old and existing laws.

Now, if you said go touch the biggest tree which just happens to be well off-path and a protected area, but i chose to stomp a bunch of flowers or whatever on the way, and so did a significant enough portion of other people to do damage, then it might be good citizenship to think about your goal marker placement. Given how often this happens, someone in charge of protecting that area might want to work something out with you in advance next time so they can be prepared, and you could tell us to go prod and stomp somewhere more harmless, and they would be happy to tell you where those places are. (Yes, i know laws and governments don’t work quite so well, but neither do corporations or people.)

Roger Strong (profile) says:

Remember when Y’all Qaeda occupied that park – Malheur National Wildlife Refuge – last year? A fake militia with a fake Marine and a fake judge in a fake siege for a fake cause? Ammon and Ryan Bundy and a few others were later tried and acquitted of all federal charges.

Good thing they didn’t take it a step further; a fake occupation using augmented reality. That could get them in real trouble.

PaulT (profile) says:

Re: Re:

That’s one possibility. The other is the evergreen “new tech scares us but we felt we needed to do something no matter how effective, and it could not wait because the children”. This does have the hallmarks of a kneejerk attempt to address a problem by people who neither understood the cause of the issue nor the implications of their “fix”.

As the saying goes, never attribute to malice…

Leigh Beadon (profile) says:

Re: Re: Re:3 Re:

Sure, yes, the other definition of peaceful is "tranquil".

If you want it to be the government’s business to ensure everyone is tranquil all the time, fine. I’ll pass, though. I’d rather live in a world where people are allowed to have some fun now and then, even if it means (gasp!) a couple cars have to slow down for five minutes.

btr1701 (profile) says:


> 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.

That’s not the only problem. There’s the ever-present (in cases like these) problems of jurisdiction. If I’m a game developer in California, creating a game downloadable on the internet, I’m not bound by decrees of some city council in Wisconsin.

Anonymous Coward says:

We're not "talking about public land"

We’re talking about public land, after all. Augmented reality makes use of public locations and public data all the time.

We’re talking about people talking about public land: users send GPS coordinates to a server which sends back data.

Cities have jurisdiction over the use of public land within them, but none over people mentioning that land. If I write "there’s a monster in Central Park", NYC can’t do a thing about it. If the Pokemon people say it, what’s the difference?

Anonymous Coward says:

Re: Re:

Geocaching generally involves people going to a location and hiding or finding physical items. They’re there, so subject to the city’s jurisdiction. By contrast the Pokemon developers are giving information about specific locations but don’t physically go there.

A city can easily ban people from playing Pokemon in a public park, but can’t ban some foreign entity from saying the park contains a monster.

z! (profile) says:

Personal jurisdiction?

I wonder if Candy Labs has made a tactical error in suing the city.

By ignoring the permit process and then being sued for lack of license, CL may have been able to argue that the court doesn’t and can’t have personal jurisdiction over them. Unless CL has offices in Milwaukee, the city would have to find some other nexus to hang the action on, which would require something like identifying a person that has purchased the game while physically located within the city bounds; even that sounds tenuous.

Anonymous Coward says:

Question concerning what would be classified as a game compared to a map (or other)?

With Google Maps and similar apps, you go to locations and can review and upload photos and receive points. (Gamification). Would these also need a permit?

It feels they are trying to find a scapegoat rather than take responsibility for their park. If people are there littering…. fine then for littering. If the grass is getting torn up from people walking on it then put on “don’t walk on grass” signs. If people are sneaking in after closing time, fine them for trespassing.

The app users abiding by the park rules have just as much right to the park as non app users.

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