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Can a city demand permits for augmented reality games like Pokémon Go?

Gamers play with the Pokemon Go application on their mobile phone.
Remko De Waal | AFP | Getty Images
Gamers play with the Pokemon Go application on their mobile phone.

Remember when the Pokemon Go game craze randomly sent hordes of obsessed players to parks, monuments, and businesses across America — at least for the few weeks the fad lasted? It turns out that at least one city wasn't a fan.

California gaming company Candy Lab has filed a lawsuit over a new Wisconsin ordinance that mandates augmented reality game makers apply for a permit in order to for their games to include markers that encompass Milwaukee parks.

The special events permit, which can include a fee, requires gaming companies to lay out plans to handle the impact of increased foot traffic to parks. These include security personnel, restroom accommodations, and garbage collection. It also includes liability coverage. The ordinance requiring this permit was created in February after Pokémon Go led to what park employees described as pandemonium.

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"It was unbelievable. There's no facilities to go to the bathroom. People are urinating on people's lawns. You're finding female napkins and feminine hygiene stuff all over the place," one county park supervisor told Inverse.

After the county worked to hold Pokémon Go game developer Niantic accountable for the mounting costs of cleanup and nighttime security to no avail, the special ordinance was passed.

Now, Candy Lab, the developer of the augmented reality game "Texas Rope 'Em," is suing over it. Candy Lab is calling the restrictions imposed by the law a violation of the First Amendment.

"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," the suit reads.

One argument at the center of the suit is the notion that Candy Lab (or any other augmented reality software purveyor) cannot be held responsible beyond the point of making it available for the app store. Physically entering any location is something the players alone are personally responsible for, the company argues. Because augmented reality does not physically introduce any outside element to the park, Candy Lab argues it cannot be regulated by the same kind of laws that aim to control physical space.

The company also claims that it cannot afford to put the research necessary to apply for this permit (or any permits mandated by municipal governments) prior to publishing its games.

At present, Texas Rope 'Em does include game stops that are geolocated in one of Milwaukee's county parks, making it in violation of the ordinance.