- Posted by Michael Leventhal
- On March 5, 2018
A developer client had an idea to take a well-known franchise and breathe new life into it by creating experiences in Mediated Reality. He was worried about how intellectual property law is being changed by the new media. A failure to get the necessary clearances could crush his product. I told him that, in most areas, there’s not a lot of change. Copyright law still applies in MR. There has been copyright protection for software programs for many years. This doesn’t change much. Ditto for trademarks. A trademark’s function is still to connect the product or service with its source. Just like you’d have to watch out for unauthorized uses of trademarks in a film, it’s the same with VR experiences and with images in an AR light field. Patents are being granted in the new technologies, but, the basic legal concepts around patents haven’t changed much. Rights of publicity . . . still the same. You can’t drop an image of Tom Hanks into a Mediated Reality experience unless you’ve got his permission, which is likely going to cost you. (But, you can drop his name into a blog.)
Where it gets a little more interesting is in privacy rights. Two scenarios have popped up over the last few years, one because of MR, and the other going hand in hand with some of the underlying technology. First of all, Personally Identifiable Information (PII) can now be collected in startling new ways. Just like your FitBit or Apple Watch can track your heart rate, how far you’ve walked, how well you’ve slept, etc., your future set of AR glasses will be watching you. Eye-tracking is an essential part of the functionality of a fully capable head-mounted wearable. In order to deliver the optimum experience, the AR device needs to know, among other things, where you are looking, where in that field you are focusing, and, perhaps, how steady your gaze is. Recently, we’ve seen that the Google retinal scan can diagnose cardiac problems. Who will own the data? What can they do with it? How does this relate to medical data privacy regulations? These questions remain unanswered, but they definitely indicate a new frontier in privacy and data collection.
Another area in privacy that has changed is the advent of virtual space. In the summer of 2016, when every young adult was reliving his or her Pokémon youth by running down streets, jumping over fences, and crashing into yards to capture virtual Pokémon, property owners started to ask themselves what their own rights were to the virtual space that is overlaid over their physical property. Can Niantic (creator of Pokémon Go) place a Pokémon in my front yard if I don’t want them to? Can a governmental entity restrict access to such virtual characters in public spaces?
It’s early yet, but we have at least one result, in which, in a stare down between game developer, Candy Lab, and a municipality, the County of Milwaukee, the county blinked after attempting to restrict the right of game companies to invite players into its public parks. Candy Lab, maker of Texas Rope ‘Em, objected to the regulation on First Amendment grounds, wound up with a settlement that allows them to proceed with their game, and has the City of Milwaukee reimbursing them for attorney fees. That will certainly not be the last time this issue will pop up . . . like Pikachu . . . in public discourse. Stay tuned.