MILWAUKEE – In a decision that provides First Amendment protection for Augmented Reality games, the U.S. District Court for the Eastern District of Wisconsin ruled Thursday that Milwaukee County’s efforts to force game maker Candy Lab AR to buy permits for its customers to use public parks to play Texas Rope ‘Em violates the free speech clause of the US Constitution.
The case represents a big win for the gaming community, and also for Warner Norcross & Judd Attorney Brian Wassom, the co-chairman of the newly created Emerging Media and Connected Devices group.
“AR Games are entitled to First Amendment protection,” Wassom said. “The county disputed that. The court ruled the ordinance was not anywhere close to being narrowly tailored, and as a result impinges upon free speech. The county’s efforts to regulate the publication of video games in the hopes that it would change behavior in public parks was, in the court’s words, like burning down a house to roast a pig.”
Here’s the backstory on the case.
Candy Lab’s AR game, Texas Rope ‘Em,’ accesses the phone’s rear-facing camera during game play and overlays visual elements onto the image of the real world as seen through the camera, including playing cards which the user can collect. Part of the game involves the user traveling to specific real-world locations to collect these cards, with the aid of the camera images and an in-game map.
The first runaway hit in this game genre was PokÈmon Go. Although its story line is, of course, quite different, PokÈmon Go has game play elements very similar to Texas Rope ‘Em, including location-based and AR elements that require players to travel to real-world locations to play the game. Such locations include, at times, public parks owned and maintained by Milwaukee County.
The county claimed that while playing PokÈmon Go, players trashed Milwaukee County parks, stayed after park hours, caused significant traffic congestion, and made excessive noise. Their impact allegedly cost the county thousands of dollars in increased police and park maintenance services. In response, the County adopted an ordinance requiring those offering such games to apply for event permits and secure garbage collection, security, and medical services, as well as insurance. Offering a game without a permit can result in a fine or jail time.
Candy Lab did not want to apply for a permit to do so, nor incur the fees associated with obtaining the services necessary to secure a permit. Candy Lab brought this action challenging the Ordinance on the ground that it violates Candy Lab’s First Amendment right to freedom of speech.
Candy Lab filed a motion for a preliminary injunction against enforcement of the Ordinance; the county filed a motion to dismiss the complaint for failure to state a claim. The court ruled in favor of Candy Lab and denied the county’s motion on Thursday.
Said Wassom: “It’s a big victory for the First Amendment and for the augmented reality industry.”
To contact Wassom with your IT law issues, click on https://www.wnj.com/Professionals/Attorneys/Wassom-Brian-D
