Tue. May 30th, 2023

A First Amendment matter is brewing in federal court over a Wisconsin local ordinance — the nation’s first — requiring publishers of mobile augmented reality games, such as pokemon go and Texas Rope ‘Em to get a special use license if their apps require gamers to play in Milwaukee County’s parks.

A Southern California company called Candy Lab, the maker of Texas Rope ‘Emis suing the county over the claim passed in February in the wake of the pokemon go craze that led to a Milwaukee County Park being overrun by a deluge of players. The permit, which costs a whopping $1,000, requires estimates for audience size and event dates and times. It also calls for plans on waste collection, bathroom use, on-site security and medical services.

Candy Lab says it is impossible to comply with the license for its fledgling app. Candy Lab cannot realistically answer the license questions (PDF) nor can it afford to pay for the other requirements, such as on-site security when users of its platform are chasing a winning hand in its augmented reality version of Texas Hold ‘Em. Like Niantic’s pokemon goCandy Lab’s app is built to be played in designated parks and other areas. These types of mobile apps provide users with a magnified and interactive view of the park.

The problem comes as mobile augmented reality games are slowly gaining popularity. At the same time, municipalities like Milwaukee are trying to deal with a technology that could cause an influx of people into their parks, with taxpayers footing the bill for the cleanup.

Candy Lab said the county is free to regulate the park as it sees fit. But what it can’t do is impose a licensing process on a game publisher, the company said. The requirement for a “special event permit” amounts to a prior restriction of speech in violation of the First Amendment, the company claims in its lawsuit. (PDF)

Just as the constitution protects a book publisher from requiring a license to publish a book, Candy Lab says the same goes for augmented reality games played in public spaces. “They’re trying to tie us down to this existing licensing system for finite-time events,” Candy Lab attorney Brian Wassom said in a Friday interview. “They pass on two-dimensional laws in a three-dimensional world.”

game is over

But the province is looking at it from another dimension, one where augmented reality games like Texas Rope ‘Em are not protected by the First Amendment.

Texas Rope ‘Em is not entitled to First Amendment protection because it does not convey messages or ideas. Unlike books, movies, music, plays, and video games—expressions typically protected by the First Amendment—Texas Rope ‘Em has no plot, no storylines, no characters and no dialogue. All it conveys is a random display of cards and a card. Without the communicative features that invoke the First Amendment, Candy Lab has no claim to the First Amendment,” the county said. (PDF)

The county said it was aware of the 2011 Supreme Court ruling against California’s ban on the sale or rental of violent video games to minors. To come to that conclusion in Brown v. Entertainment Merchants Association, (PDF) the judges said video games amounted to speech protected under the First Amendment. But that doesn’t mean the same is true when it comes to augmented reality, according to the county.

“No court has yet determined whether an augmented reality game will receive First Amendment protection,” the county noted in its response to Candy Labs’ federal lawsuit. “As explained in BrownThe reason video games receive First Amendment protection is because they communicate ideas and messages through literary devices or through features that are characteristic of the medium. … In other words, video games will be protected under the First Amendment if they contain enough communicative, expressive, or informational elements to fall at least within the outer limits of constitutionally protected speech.”

It’s a feature, not a bug

texas rope ’em, the province maintains, “has no storylines, no characters, no plot and no dialogue. The player just looks at randomly generated maps and travels to locations to get more. That’s not the kind of speech that requires First Amendment guarantees.” The county also claims that the app is an illegal form of gambling that is not entitled to First Amendment protection.

Candy Lab’s attorney Wassom told Ars the county’s argument is “ridiculous.”

“Those are characteristics of a certain expression of a game,” he said. “That doesn’t make it no entertainment and no speech.”

Niantic, the creator of pokemon goArs said, “Continued innovation and responsible gameplay, rather than regulation, is how developers, players and their communities will realize the potential of this technology for civic engagement, creative expression and health.” The company said it is working with Milwaukee to address its concerns.

“We’ve worked with park departments, in Milwaukee and other communities, to optimize gameplay distribution, including removing or moving some gameplay locations, while adding new locations in other areas, and also adding the ability to game venue opening times comply with local regulations,” Niantic said.

Wassom said Candy Lab would formally respond to the county’s arguments in court on Wednesday. U.S. District Judge JP Stadtmueller in the Eastern District of Wisconsin has set a trial date for April 2018 if no settlement is reached.

List image by Candy Lab

By akfire1

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