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.

Filed Under: augmented reality, permits, pokemon go, property rights, texas rope 'em, wisconsin
Companies: candy lab

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.

Filed Under: augmented reality, milwaukee, permits, pokemon go, texas rope 'em
Companies: candy lab ar