GDC 2021: Are VR and AR companies liable for gamer content creation?


One thing I love about a good GDC presentation is when devs bring up those issues that many of us get a funny feeling about and show us how right or wrong we are. During a panel at this year’s GDC 2021, David Hoppe of Managing Partner Gamma Law brought up some issues near and dear to my heart: recent rulings that concern augmented reality (AR) and virtual reality (VR) – XR for short.

While I’ll leave most of the heavy lifting to MOP’s Andy and our Lawful Neutral column, I’m MOP’s resident AR/VR guinea pig guy, so I thought I could at least tackle a bit of this discussion, especially given how often I’ve expressed concern at practices I’ve seen in the XR genre. A lot of the concerns players have popped up at the end of 2019 when we discussed how Kotaku found Niantic tracking players’ locations up to 3 times per minute, potential calories burned, and promotions they engaged in, even at times when Niantic apps weren’t running. MMO developer Raph Koster had long since raised the alarm on issues like this, so we’re here to once again provide a trail of “told you so” for players and professionals who also have that funny feeling about recent rumblings in AR/VR.

Many people have been upset by Facebook forcing itself onto Oculus users, worried about how the data it’s yoinking may be used. While there was no comment on protections from big business during the panel, Hoppe noted that there may be some precedence when it comes to protecting your own virtual data. For example, in Kyllo vs. United States, the Supreme Court ruled against police using thermal imaging to scan a person’s house for marijuana growing heat lamps without a warrant. The idea was that the technology is not in widespread public use nor can what it detects be easily seen in a physical sense. Hoppe suggests that since technology such as biometrics can be equally invasive information and not something the public widely uses, the police should need a warrant to access any biodata unscrupulous companies may hold on to – and that could include some video game data.

In the AR space, Hoppe brought up the recent issue of Lemmon vs. Snap (Snapchat) – that’s the case where Snapchat is alleged to have urged users to speed in their vehicles, resulting in the death of three users. The Ninth Circuit Appeals Court recently reversed an earlier decision, so presently, the courts are aiming to hold Snap accountable. While the case is ongoing, the short end of the story is that creating something, such as a filter/overlay, and adding incentives to use it does not satisfy the requirements for the protections offered by Section 230 of the Communications Decency Act. The court notes that “Snap indisputably designed Snapchat’s reward system and Speed Filter” and that it misunderstood “the import of [the court’s] statement in Dyroff that a website’s ‘tools meant to facilitate the communication and content of others’ were ‘not content in and of themselves.'” The filter was not necessarily for communication, which Hoppe noted essentially puts Snap more in the role of a product developer.

This immediately made me think of Niantic and many of its legal issues with Pokemon Go. Like Snap, Niantic doesn’t exactly act in a communication facilitation role, especially since its chief games still lack proper chat systems. It’s also created an incentive system that could motivate players to break the law (and did). The developers even ask players to not only submit points of interest but record the surrounding area for development purposes it doesn’t fully disclose. When I asked whether players or the companies could be held liable for anything they may not be aware of, Hoppe said, “Potentially both the AR company and the individual would be subject to liability. Since the individual is not an employee in this case, he/she would be directly liable for his/her acts, and the company could be sued for encouraging/assisting the acts.”

So while Niantic may be getting a lot of free work out of players, both it and the player could potentially find themselves in hot water if someone really tried, despite End User License Agreements. Again, Lemmon vs. Snap is ongoing, but Niantic is very much not a communications company/platform and yet it incentivizes gameplay that we’ve already seen clash with the law. As much as I enjoy AR and VR, companies should consider the safety of their users and design content that avoids obviously problematic design, especially if they’ve already produced similar games where players have died.

MOP’s Andrew Ross is reporting from GDC’s summer digital event in 2021! You can find more of his coverage right here:

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