App Maker Defeats Milwaukee’s ‘Pokemon Go’ Permit Law

MILWAUKEE (CN) – A federal judge granted a preliminary injunction Thursday against Milwaukee County’s ordinance requiring augmented-reality game makers to obtain a special permit for games like “Pokemon Go.”

Augmented reality gives users the illusion that “digital images are physically present in front” of them by blending digital content with a person’s physical senses, according to a lawsuit filed in April by Nevada app maker Candy Lab AR challenging the ordinance.

The ordinance at issue amends Section 47.03 of the Milwaukee County Code and came after the “Pokemon Go” augmented reality app was released last year. In the game, users collect items and Pokemon by physically going to real-world locations, as directed by the app.

After the game’s launch and ensuing global craze, Milwaukee County parks saw “increased trash, wear on the parks, and the need for a police presence in the parks,” according to court records. Candy Lab says the ordinance was passed in February in response to the popularity of “Pokemon Go.”

Just weeks after the ordinance passed, Candy Lab launched its “Texas Rope ‘Em” app, which requires players to interact with virtual poker cards in actual physical settings throughout cities like Milwaukee.

The ordinance requires businesses introducing augmented reality games to be played in the county to fill out a special-event application that includes liability for damage done to parks by users playing the game.

Candy Lab claimed the expense of “obtaining insurance for unknown numbers of players, in every park, during all park hours would be cost prohibitive.”

On Thursday, U.S. District Judge J.P. Stadtmueller found that Candy Lab was likely to succeed on its claim that the ordinance violates the First Amendment on its face.

“The court observes that the ordinance … does not appear narrowly tailored to serve the interests it purports to promote,” Stadtmueller wrote in a 27-page opinion. “The ordinance treats game developers like Candy Lab as though they are trying hold an ‘event’ in a Milwaukee County park. However, this misunderstands the nature of the problem, since Candy Lab’s video game will not be played at a discrete time or location within a park. Requiring Candy Lab to secure insurance, portable restrooms, security, clean-up, and provide a timeline for an ‘event’ is incongruent with how Texas Rope ‘Em (or any other mobile game) is played.” (Parentheses in original.)

The judge said Milwaukee County did not meet its burden to show that measures less restrictive than the ordinance are insufficient to solve problems associated with augmented-reality games.

“The ordinance…dooms itself in its failure to provide ‘narrowly drawn, reasonable and definite standards’ to guide the County officials who must apply it,” the ruling states. “This finding is enough to invalidate the ordinance.”

Candy Lab Inc. says its augmented-reality game “Texas Rope ‘Em” immerses players in a “Western-themed virtual environment, complete with a Texas-themed game title, color scheme, and graphics, allowing the player to corral favorable playing cards using an animated lasso.”

Before the judge’s decision to strike it down, ordinance violators faced a fine ranging from $10 to $200 and up to 90 days in jail if the fine was not paid.

According to Candy Lab’s lawsuit, Sheldon Wasserman, a member of the Milwaukee County Board of Supervisors, proposed the ordinance following last summer’s unexpected “Pokemon Go” craze.

Wasserman reportedly received complaints that large numbers of people were playing the game in Milwaukee’s Lake Park, some of whom littered, trampled grass and flowers, and stayed past park hours.

He claimed that the county was forced to spend tens of thousands of dollars on additional police and park maintenance services.

Wasserman, Milwaukee County and its Department of Parks, Recreation and Culture did not immediately respond Friday to email requests for comment on the ruling.

Candy Lab’s attorney, Brian Wassom of Warner Norcross & Judd LLP in Southfield, Mich., celebrated the ruling in an emailed statement.

“I’m gratified by the strong endorsement Judge Stadtmueller gave to Candy Lab AR’s arguments,” he said. “This ruling will go a long way toward easing the concerns that augmented reality developers across the world had after reading Milwaukee’s ordinance, and will help spur creativity and free expression in this important new medium.”

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