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Don’t Regulate Augmented Reality Out of Existence

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Don’t Regulate Augmented Reality Out of Existence

September 4, 2017

Niantic’s Pokémon Go, an augmented reality (AR) app that integrates the digital and physical worlds to allow users to see and catch Pokémon, quickly became a global phenomenon when it was released last summer. It soon became the biggest mobile game in U.S. history, on the path to reaching more than 75 million total installations within three weeks. To date, Pokémon GO is AR’s biggest success story and most notable app, but it has not been all fun and games.

The craze has faded to some extent, but it remains one of the most popular mobile games with about 65 million monthly active users.

Park officials in Milwaukee County worried about the app’s “unanticipated and negative consequences,” such as littering, noncompliance with park hours, and logistical issues from heightened numbers of people visiting the park in their quest to “catch ‘em all,” as aficionados say. Officials presented these concerns in a report in September 2016, when the Pokémon GO frenzy was still in full swing.

In February, 2017, the county passed an amendment forbidding all location-based augmented reality apps from the parks unless they obtained a permit.

Permit applications would be subject to an internal review by the Parks Departments “to determine the appropriateness of the application based on site selection, protection of rare flora and fauna, personal safety, and the intensity of game activities on park lands.”

The 11-page special event permit application, which includes fees and associated costs that could reach $1,000, also require a certificate of insurance with $1,000,000 of general liability coverage, and plans for everything from supplying portable restrooms to post-event cleanup.

In response to the ordinance, Candy Lab AR, developer of Texas Rope ‘Em, filed a lawsuit against the county, claiming that the requirement “impinges on Candy Lab AR’s right to free speech by regulating [its] right to publish its video games that make use of the augmented reality medium.” Candy Labs asserted that as it was still a startup, it would not be able to afford the involved process of obtaining permits from municipal governments before publishing its apps. Further, it claimed that the application requests information that is “either inapplicable or impossible to assess accurately with respect to a mobile application.”

Requiring AR app developers to acquire a permit reveals a fundamental misunderstanding of how these applications work. Once a person downloads Pokémon Go, for example, they determine when and where to play it. The developer does not host regular events or dictate terms to users. Developers would be unable to forecast the amount of users coming to the park on a given day.

If other municipalities followed Milwaukee County’s lead, developers such as Candy Labs would be unable to wade through the web of required permits, and would likely be unable to ever bring their app to market.

Officials worried about adverse downstream effects of augmented reality apps, such as littering or using public parks off-hours, should increase enforcement or penalties against those effects themselves. They should not regulate augmented reality app developers under outdated or ill-fitting frameworks.

Judge J. P. Stadtmueller, who was overseeing the case, has issued an injunction against the ordinance. In his statement, he said it the requirement was unnecessarily burdensome and “forcing a square peg in a round hole.” He recommended that park officials should focus on vigorous enforcement of the outcomes they find violate park rules, such as littering, instead of prohibiting the publication or use of augmented reality games on park lands.

Augmented reality is still in a nascent stage, with Pokémon Go being the most notable app of the technology so far. The technology offers a multitude of possibilities and potential uses from entertainment to providing information to drive to assisting medical professionals. If officials try to impose last century’s regulatory framework on developers of these new applications, they could stifle innovation.

Preventing prohibitive regulatory barriers for AR is especially important now, as a wave of new AR products could soon be coming. In September, Apple is reportedly releasing an augmented reality framework, ARKit, to provide tools for developers to build AR apps. These apps would be designed to be used with the iPhone or iPad, and widely available once the next operating system is rolled out in September.

We do not know yet which forms of AR products will be the most popular or be the most transformative. Regulators should avoid rushing to impose rules on developers that might limit AR’s potential when it is just getting started.  

Charles Hughes is a policy analyst at the Manhattan Institute. Follow him on twitter @CharlesHHughes

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