Court Blocks Wisconsin Augmented Reality Permit Law From Being Enforced

from the augmented-legality dept

You will recall that earlier this year we discussed a lawsuit brought by the makers of a mobile augmented reality game entitled Texas Rope 'Em against the city of Milwaukee over an ordinance it had put in place requiring game developers to obtain a permit to function within the city. Aside from the $1,000 permit fee the ordinance put in place, the requirements to obtain the permit were both odious and laughably non-applicable to the makers of mobile games such as Texas Rope 'Em. Examples of these requirements include plans for garbage collection left by players, plans for on-site security to protect players, and estimates of "crowd sizes." For makers of augmented reality apps, none of these requirements make any sense. When the developer of the game, Candy Lab, cried foul over First Amendment concerns, Milwaukee County replied that the game maker is not entitled to First Amendment rights, arguing that the game wasn't expressive enough to warrant them.

Well, in the opening round of the legal action, Candy Lab is a heavy winner. The court has enjoined the city from enforcing the law until the outcome of the trial, while also including language in the order that makes it fairly clear where the court is going to rule on the First Amendment question.

Plaintiff has a reasonable likelihood of success on the merits of its claims under 28 U.S.C. § 1983 for violation of the First Amendment. Plaintiff will suffer irreparable harm if Defendants are permitted to enforce Section 47.03(3) of the Milwaukee County Code of General Ordinances, adopted in Resolution 16-637.

Now, the trial has been set for next Spring, but fortunately that timeline won't keep Candy Lab from doing its business in Milwaukee with the injunction now in place. Frankly, I'd be somewhat surprised if that trial ever occurs, given the courts clear indication that it sees the law as a First Amendment violation, or at least that Candy Lab is likely to win on the merits of that assertion.

Still, it's troubling that Milwaukee would have tried to put this lab into place to begin with. Frankly, where permitting schemes are often times revenue generators for municipalities, the requirements for the permit in this case seem almost perfectly designed to simply keep augmented reality apps out of the city entirely. Why? It's not like other cities in America, both larger and smaller than Milwaukee, have suffered significant headaches or damage as a result of the now panoply of AR games on the market.

And the claim that an AR game isn't speech-y enough to warrant free speech rights? That's just silly.


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  • identicon
    Anonymous Coward, 27 Jul 2017 @ 1:45pm

    Not "within the city"

    requiring game developers to obtain a permit to function within the city.

    The permit would have been to talk about the city, not to do anything within it. Some server, maybe in California, might say "hey, there's on a monster on this street corner in Wisconsin, and you'll get points if you catch it". Making this statement doesn't require permission from Wisconsin (a state the game developers would've generally had no specific connection to). Nor does accepting communitions from people within that city, and updating a database as a result.

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 28 Jul 2017 @ 12:10pm

      Re: Not "within the city"

      > Making this statement doesn't require permission from
      > Wisconsin (a state the game developers would've generally
      > had no specific connection to).

      Exactly.

      1st Amendment concerns aside, the more fundamental issue of jurisdiction would defeat this ordinance.

      If I'm a game developer in California or Toronto or Copenhagen, the city of Milwaukee has exactly zero jurisdiction over me, even if part of my game is *about* the city of Milwaukee. People writing software available on the internet are not subject to the literally hundreds of thousands of local ordinances enacted by cities and counties around the world.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jul 2017 @ 1:48pm

    "requiring game developers to obtain a permit to function within the city"

    This part is just hilarious to me. If I draw stuff on a map of your town from some other state, am I "functioning within the city"? Should other developers get a permit from Sauron to set a game in Mordor?

    Even if this somehow had zero first amendment violations, the law would be completely useless because no video game operates inside a particular city. Unless now Blizzard needs to get a permit from the city because they have some people in the city who play World of WarCraft?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jul 2017 @ 2:12pm

      Re:

      Should other developers get a permit from Sauron to set a game in Mordor?

      If you consider Tolkien's estate to be Sauron, then yes. Yes they should.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jul 2017 @ 3:11pm

      Re:

      @ "This part is just hilarious to me. If I draw stuff on a map of your town from some other state, am I "functioning within the city"?"

      Evidently you missed key point that the game causes large number of actual persons to gather in a city park. It's not theoretical.

      I congratulate, AC, for upholding Techdirt's tradition of obliviousness to facts.

      I'll even predict that this is upheld in full. Flash-mobs caused by games is clearly going to create havoc at some point. -- Suppose a game company decided to place a location right outside where you live? Willing to put up with extra traffic and havoc? At three AM, too? Hmm.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jul 2017 @ 4:40pm

        Re: Re:

        So if a bunch of candy crush players congregate in a park to play together it's the developer's fault?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jul 2017 @ 4:43pm

        Re: Re:

        You're the one that's oblivious as to what AR is. It's just a map from an in game world to the real world. Why should the developer be responsible for what the users do with it?

        And if you're just talking about dealing with crowds of people in places, why do we need new laws at all. If they're littering, there's already a law for that. If they trespass, there's already a law for that. If they're a bit of a nuisance because you hate seeing nerds playing video games in the park, that's perfectly legal behavior that we shouldn't have a law for.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jul 2017 @ 4:45pm

        Re: Re:

        As pointed out in another comment by some one else:

        "GPS displays are a form of augmented reality. There are countless stories of people blindly following GPS directions into buildings, rivers, etc. Some of those stories, especially where remote roads are involved, end in death. The risks are far more real than for games.

        To be fair, shouldn't Milwaukee also require GPS device and app makers to have permits, plans for garbage collection left by users, plans for on-site security to protect users, and estimates of "crowd sizes?""

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Jul 2017 @ 8:21am

        Re: Re:

        I can't wait for you come come back and apologise when this law gets overturned. Because you are a solid and upstanding citizen, who will of course take responsibility for his/her/it's words and deeds.

        reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 28 Jul 2017 @ 12:15pm

        Re: Re:

        > > This part is just hilarious to me. If I draw stuff on a
        > > map of your town from some other state, am
        > > I "functioning within the city"?

        > Evidently you missed key point that the game causes large
        > number of actual persons to gather in a city park. It's
        > not theoretical.

        Doesn't matter. That doesn't suddenly mean the game's author is *operating* in the city him/herself.

        If I write a best-selling suspense novel (a la THE DA VINCI CODE) where the protagonist solves the mystery by decoding clues found on landmarks all around the city of Milwaukee, I'm not 'operating in Milwaukee' just because crowds of people read my book and show up in Milwaukee to see for themselves the things I wrote about.

        reply to this | link to this | view in chronology ]

  • identicon
    AricTheRed, 27 Jul 2017 @ 2:01pm

    Wifey

    Wifey complains that I'm not expressive enough to warrant a bunch of stuff, but do you see her complaining about it in a way which she will embarrassingly lose in court?

    No 'cause she's smarter than Milwaukee.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jul 2017 @ 2:06pm

    Ironically, the only good thing to come out of Milwaukee is that slightly ARG-like video that took place there. I'll buy you a Ham-Burger when I get back from the tooooooomb!

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 27 Jul 2017 @ 2:10pm

    GPS?

    GPS displays are a form of augmented reality. There are countless stories of people blindly following GPS directions into buildings, rivers, etc. Some of those stories, especially where remote roads are involved, end in death. The risks are far more real than for games.

    To be fair, shouldn't Milwaukee also require GPS device and app makers to have permits, plans for garbage collection left by users, plans for on-site security to protect users, and estimates of "crowd sizes?"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jul 2017 @ 2:43pm

      Re: GPS?

      THIS. And I didn't expect to find support for the city here.

      >>> GPS displays are a form of augmented reality.

      Though the game differs greatly because promotes large numbers of people converging on one place...

      >>> There are countless stories of people blindly following GPS directions into buildings, rivers, etc. Some of those stories, especially where remote roads are involved, end in death. The risks are far more real than for games.

      Exactly! Just because this game is set only in one park, the city should outlaw before goes further.

      >>> To be fair, shouldn't Milwaukee also require GPS device and app makers to have permits, plans for garbage collection left by users, plans for on-site security to protect users, and estimates of "crowd sizes?"

      Yes. The ordinance does or could be easily extended, since as you show, the principle of dangers to persons and costs to city is sound. Citation needed for that it doesn't.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Jul 2017 @ 2:50pm

        Re: Re: GPS?

        Don't forget the permit seekers must have a plan in place to deal with the garbage and other things stupid people do while using the App.

        reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 27 Jul 2017 @ 4:21pm

        Re: Re: GPS?

        And I didn't expect to find support for the city here.

        You didn't.

        Wikipedia: Reductio ad absurdum

        Example: Republican Party presidential primaries, 2016

        Though the game differs greatly because promotes large numbers of people converging on one place...

        The other involves issuing distracting and occasionally dangerous commands to users operating multi-ton power equipment at high speeds.

        reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 28 Jul 2017 @ 12:18pm

        Re: Re: GPS?

        > Just because this game is set only in one park, the city
        > should outlaw before goes further.

        The city of Milwaukee has *no* jurisdiction over anyone who isn't in Milwaukee. People in Oklahoma (or Maine or London) have no legal obligation to obey Milwaukee city ordinances.

        reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 27 Jul 2017 @ 4:30pm

    So, I wonder...

    How many taxi cab companies provide security for people waiting to be picked up by a cab, or to ensure those people get home safe after being dropped off?

    How many retail stores send out litter patrols to ensure the streets are clean between their property and their customer's homes in the event a customer decides to litter en route?

    For that matter, in most places city police have no duty to protect individuals in any way -- Has the City of Milwaukee provided adequate security to protect individual citizens of the city and visitors to the city, or have they shirked their responsibility and should be shut down accordingly?

    reply to this | link to this | view in chronology ]

  • identicon
    dingbats, 27 Jul 2017 @ 5:05pm

    OK

    really? Ok I issue this challenge to anyone thinking that the company should get to do whatever they like.

    Looking for volunteers - need verifiable names/addresses of those of you live next to any park, public property, ball field, sports facility. I am planning on releasing a game- and I will definitely place a very large portion of this game on the property directly across or next door to yours. You will have to sign a waiver that YOU, since you are your own property owner will be solely responsible for any damage that the players of my game may do to your property or immediately surrounding area. Trees, bushes, flowerbeds will all be covered by this waiver. Be advised - this game could make players do unexpected things - go in completely random directions. I will take no responsibility for any paths that these players may take that will cross, intersect, or go above, or below your property. Any trash that is left on the adjoining property/street will also be your responsibility and you will not hold me the publisher responsible.

    Sound good? I suspect that I will get ZERO takers.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2017 @ 8:25am

      Re: OK

      Does your game have as many strawman as your arguement?

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 28 Jul 2017 @ 8:32am

      Re: OK

      Yeah, that's a really silly bunch of words there.

      No one has claimed that the players of these games are somehow exempt from existing property laws, local laws and/or city ordinances, only that that this particular ordinance is most likely unconstitutional and unenforceable.

      The actual persons trespassing on private property or littering are responsible for their own actions and that has absolutely nothing whatsoever to do with whatever app they happen to be using at the time.

      reply to this | link to this | view in chronology ]

  • identicon
    Pedantic Pete, 27 Jul 2017 @ 5:48pm

    lab

    lab -> law

    reply to this | link to this | view in chronology ]

  • icon
    Coyoty (profile), 28 Jul 2017 @ 9:58pm

    Pokemon Farm

    All expression is equal, but some expression is more equal than others.

    reply to this | link to this | view in chronology ]


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