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CHAPTER

Real Property Rights

INFORMATION IN THIS CHAPTER:

• Whether owners of real property can, or should be able to, control the augmented content associated with their property
• The intersection of free speech and property rights in AR
• AR’s effect on trespass, nuisance, easement, and environmental protection principles

INTRODUCTION

The primary question considered in this chapter is this: can an owner of real property stop someone else from creating an augmented layer associating digital content with that property? At first blush, this question seems to present issues of property law. Because the content being overlain upon this property is both expressive and intangible, however, we cannot answer the question without also considering the law of free speech.

We will also briefly consider additional ways in which augmented world technologies may impact other real property rights, including in the areas of trespass, nuisance, easements, and environmental protection.

THE BASIC RIGHTS AT ISSUE

A BRIEF OVERVIEW OF REAL PROPERTY RIGHTS

In light of the various ways in which this book uses the word “real,” it may be helpful to note that “real property” is the term of art that distinguishes a physical parcel of land from other sorts of property, such as portable objects (personal property) or abstract, intangible expression (intellectual property). From a legal perspective, ownership of real property is the right to possess and exclude others from a parcel of land. Such rights may be complete or limited in some respect.

Augmented Reality Law, Privacy, and Ethics

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In modern society, ownership rights in most parcels of land are limited by a variety of “nonpossessory interests,” which are rights to make certain uses of the land (or to limit use by others) without actually physically occupying it. Centuries ago, for example, property rights were understood to extend from the land upwards all the way into space and down to the center of the earth. This legal concept is captured in the Latin maxim Cuius est solum, eius est usque ad caelum et ad inferos (“For whoever owns the soil, it is theirs up to Heaven and down to Hell”), which dates back to medieval Roman law and continued to be followed by English courts well into modern times. The latter half of this principle is what allows land owners to sell mining rights to the earth underneath their property.

The first half of that maxim - what can generally be called “air rights” - became a source of conflict soon after the development of aviation technology; landowners began demanding the right to exclude aircraft from flying over their property, or to at least charge them for doing so. Faced with a balkanization of airspace that would have made development of an aviation industry impossible, Congress passed the Air Commerce Act of 1926, later replaced by the Federal Aviation Act of 1958. The latter Act provides that “[t]he United States Government has exclusive sovereignty of airspace of the United States,”210 and that “[a] citizen of the United States has a public right of transit through the navigable airspace.”211 Currently, the general rule is that aircraft must fly high enough so that, in the event of an engine failure, the pilot can land the plane without undue hazards to persons or property on the ground. Specifically, in congested areas, aircraft must remain 1,000 feet higher than any obstacle within a 2,000 feet radius of the aircraft. In non-congested areas, or over bodies of water, the pilot must remain at least 500 feet from any person, vehicle, vessel, or structure. These requirements are reduced during take-off and landing. Thus, the demands of modern society have reduced the individual’s historical sovereignty over their property. (“Some nations still assert a similar principle when objecting to satellites entering the orbital space above them.”212)

Air rights became a source of profit in urban centers when those who owned relatively short or underground structures realized they could sell to others the rights to construct buildings on top of theirs. Railroad companies in particular have made significant amounts of money selling the rights to build on top of railroad stations. The Madison Square Gardens arena, for example, is built above New York City’s Pennsylvania Station (Fig. 6.1).

FIGURE 6.1

Madison Square Gardens.213

This idea of alienating one’s air rights has also contributed to the idea of the “Transfer of Development Rights” (“TDR”),214 a concept within zoning law. There are several forms of TDR, but as applied to air rights, it describes a system in which a municipality sets an arbitrary cap on how high structures can be. A developer may exceed that cap, however, by purchasing from other landowners the right to develop the space between their existing buildings and the cap. The purchaser may then exceed the cap by the amount of purchased space. Therefore, although the height of individual buildings will vary, the average height of all structures remains below the cap. In contemporary urban life, people are often referring to TDR when they use the phrase “air rights.”

The law provides various remedies for violations of a landowner’s rights. If a person enters onto someone else’s land without permission or privilege to do so, for example, they have committed trespass, and the owner could bring a cause of action to eject the trespasser and recover any damage that may have been caused. On the other hand, a landowner owes certain duties to protect the well-being of those who enter his property. Those duties vary based on how much of a right the person has to be there. Logically, trespassers are the group least entitled to the owner’s protection. Nevertheless, under some circumstances, even someone who is injured while trespassing may still sue the owner for negligence (a concept discussed in more detail in Chapter 7).

Property rights may also be infringed without ever stepping foot on the land. That is because property ownership is also understood to include the right of “quiet and peaceful enjoyment” of the land. A substantial and unreasonable interference with this right is called a “nuisance,” and landowners may bring a cause of action in court to remedy it.

THE FREEDOM OF SPEECH

As touched upon in Chapter 5, the First Amendment to the U.S. Constitution forbids Federal, state, and local governments215 from “abridging the freedom of speech, or of the press.” There has never been consensus, however, on the precise meaning of these words.

Over the more than 200 years in which courts have been interpreting these phrases, they have relied on various rationales to explain the First Amendment’s role in American society. Some argue that speech must not be restrained because “the best test of truth is the power of the thought to get itself accepted in the competition of the market”216 -what’s called the “marketplace of ideas” theory. Other rationales focus on the vital role that the free flow of ideas plays in a democratic society: “[T]o decide matters of public policy ... voters ... must be made as wise as possible. [And] this, in turn, requires that so far as time allows, all facts and interests relevant to the problem shall be fully and fairly presented to the meeting [so] that all the alternative lines of action can be wisely measured in relation to one another.”217 Still others argue instead that “[the] value of free expression ... rests on its deep relation to self-respect arising from autonomous selfdetermination without which the life of the spirit is meager and slavish.”218 Regardless of its exact purpose, however, modern courts have agreed on one thing: the freedom of speech is one of the most cherished, fundamental principles in our legal system.

That is why, even though some limits on expression will be “permitted for appropriate reasons,”219 those limits will be defined narrowly, and justifying a limitation on speech requires meeting a high burden of proof. Some established exceptions include contentneutral rules that curb the “time, place, and manner” in which expression may occur, and words that pose a clear and present danger of “inciting or producing imminent lawless action.”220 Some classes of expression have been deemed to have no First Amendment value at all, such as disclosures of purely private facts and obscenity. Similarly, commercial speech - i.e., advertising that proposes a commercial transaction - has been held to have less societal importance than most other speech. Therefore, courts are more willing to allow governments to regulate advertising than speech on political or personal ideas. This explains why trademark, false advertising, and similar laws are constitutional, and will also impact the regulation of commercial speech in the augmented medium.

AR: WHERE PROPERTY RIGHTS AND FREE SPEECH COLLIDE

AUGMENTED ADVERTISING - AND MORE - IS COMING TO REAL ESTATE NEAR YOU

As mentioned in Chapter 5, the augmented medium will allow advertisers to post commercial messages literally anywhere the eye can see. The past generation has already seen commercial sponsorship creep into such unlikely venues as grocery store floors and car wraps. Advertising dollars have largely underwritten much of the public internet’s growth, including the rise of Google, the internet’s most prominent titan. Google itself has told the government that the industry will soon be displaying ads in such novel places as refrigerators, automotive dashboards, and thermostats,221 which represents a quantum leap in the pervasiveness of commercial messaging beyond what we experience today.

But that discussion is still about advertising that is physically transmitted by digital pixels and screens. Augmented advertising will enable commercial messages to appear as if they are physically present on top of almost any surface, without anything physical needing to change about that surface. Recall Keiichi Matsuda’s “Domestic Robocop” visualization, discussed in the prior chapters, in which an individual wearing AR eyewear sees advertising plastered on nearly every flat surface within his apartment kitchen - and is even able to manually adjust the density of the messages to make the physical objects on those surfaces more or less visible amidst the digital clutter.

Now apply that same mechanism to the world outside that kitchen, and you have a sense of what augmented advertising could become. A person walking down a city sidewalk wearing AR eyewear could be shown advertising digitally plastered over every surface within view - sidewalks, buildings, park benches, passing cars, lamp posts, the clothing of passersby. City life is already thought of as dominated by commercial advertising because of the number of ads on billboards and building faces, yet such a physical infrastructure for commercial advertising will seem painfully quaint and outdated - not to mention expensive to maintain - in an augmented world.

This sort of urban experience will take time to manifest, and there will be stepping stones along the way. Current models of digital eyewear, for example, do a poor job (compared to the human eye, anyway) of recognizing the physical world around them, so visual messages are more like heads-up displays at optical infinity rather than “augmentations” that appear as if they are overlain on the plane of actual physical surfaces. Over time, the devices will catch up to where other mobile AR apps are now, able to recognize more pre-programmed surfaces in the physical world so long as those objects appear in just the right lighting and orientation. Those targets are likely to be mostly commercial symbols because the technology will need funding in order to expand. (And, as discussed in Chapter 5, these interactions will lead to squabbles between brands, such as when the coupon triggered by one company’s logo is for a competitor’s product.) Ubiquitous, on-the-fly augmentations of anything and everything are still several years away. But it is coming because it is the logical conclusion of all of the various trends we see today in digital technology and advertising models.

PROPERTY-BASED MODELS OF CONTROLLING LOCATION-BASED MESSAGES BREAK DOWN IN AR

Before the advent of AR, if I wanted an advertisement to appear above a certain piece of land or the side of a particular building, I had only one option: to erect a physical sign there. That sign could take the form of a poster, a billboard, or a digital screen, but it would need to be a physical object located on the parcel of land. For that, I would need the landowner’s permission. (For night-time-only ads, I could also project them against a physical surface on the parcel from afar, but that is only a temporary solution and may also infringe the landowner’s rights in some cases.)

In the augmented medium, however, all I need to cause a digital message to appear as if it is plastered on a particular building or place is the right software and mobile hardware. No intrusion onto the physical space itself ever occurs, so the landowner’s right to exclude me from his property is never triggered. Nor am I entering the airspace above the building, even if the digital message appears to be there, so air rights are not being violated. Nevertheless, AR is designed to create the illusion of physical presence, and ads virtually plastered onto physical places may feel like an intrusion, so resort to the law of property to regulate them is an understandable impulse.

Other commentators have also foreseen augmented advertising and the legal issues they will raise. John C. Havens, for example, discussed them and some of the legal issues they raise in his insightful piece for Mashable called “Who Owns the Advertising Space in an Augmented Reality World?”222 Noting that Google had already applied for a patent for digitally replacing physical ads within the Street View feature of Google Maps, Havens wrote that “the importance of virtual real estate may quickly supplant actual signage for advertisers. This is especially true when virtual signage could be switched dynamically for individual eye traffic depending on a viewer’s preferences.” He went on to quote Gabe Greenberg, director of social and emerging media at Microsoft, as saying that, “if the experience presents the ads in a way that makes sense for the augmented reality experience and the user’s intention, this could be a powerful advertising tool for tomorrow’s marketplace.”

These predictions are persuasive. As discussed in Chapter 4, advertisers will absolutely make use of the augmented space to customize and expand upon their messaging. This medium will offer so much more functionality than physical signage that it is likely to quickly become the dominant means of advertising, even more quickly than digital billboards have begun to overtake the printed variety. Where my view diverges from this article’s (or headline’s, anyway) approach, however, is in tying this means of augmented advertising to air rights. As discussed above, air rights are a subset of real property rights used to determine who may occupy the airspace immediately above a particular parcel of land. When (as in the scenario painted by the Mashable article) the land owner permits the advertising, air rights are not implicated. They only come into play when a third party seeks to impose its content on someone else’s airspace. May the property owner control that type of advertising?

In my view, such questions will not typically be determined according to who owns the air rights. Applying air rights to control third-party augmented content would reflect a particular assumption - specifically, that the physical location in which the augmented ad appears to the consumer should determine who gets to control the content of that ad. In other words, an owner of real property should get to determine which, if any, digital advertisements that users can see projected upon their property. An advertiser could not build a physical billboard on a plot of land without the landowner’s permission, after all; this viewpoint applies the same thinking to augmented ads.

This means of conceptualizing augmented advertising has been common in my experience because it parallels the laws that apply to the current media with which we are familiar. As the market for augmented advertising develops, however, I think it will become clear that an approach based on the law of real property does not work in this context. Property ownership is the right to exclude people and things from occupying a particular space. This model is logical - even necessary - when applied to physical objects because only one object can occupy a given physical space at any particular time.

But that model breaks down when applied to augmented content. Unlike a physical billboard, augmented content does not actually occupy the physical space in which it appears. AR is, in this respect, a mere illusion. Regardless of how convincingly the user’s mobile device conveys the impression that a tangible, three-dimensional object exists in a particular physical place, it is not actually there. A limitless number of mobile apps can be programmed to display an infinitely diverse range of content on top of the same physical space. The digital content does nothing to interfere with the property owner’s use or enjoyment of the physical property in which it appears to exist.

Therefore, property law does not help us think accurately about the AR experience. Rather, when my digital device recognizes a person, place, or thing and is triggered to augment my view of it with digital information, the experience is much more like clicking a hyperlink on a web page - except that the “web page” is the physical world around me, and the hyperlinked “text” is the person, place, or thing that triggered the display. And just as with a web page, there is someone responsible for writing the short piece of link code, for choosing to associate it with that person, place, or thing in the program being run by the digital eyewear, and for determining what information the link code will deliver to me.

IN MANY CASES, FREE SPEECH RIGHTS WILL PREVAIL

Consider the possibility, then, that the choices a coder makes in associating digital content with a tangible object is itself speech protected by the First Amendment’s prohibition of laws that “abridg[e] ... the freedom of speech, or of the press.” We can get a sense of how courts will answer this question by thinking like judges do -in analogies. When courts encounter unique factual circumstances (what they call “cases of first impression”), they draw from cases dealing with the most analogous facts they can find, and from there new case law emerges.

A good way to understand the three-dimensional “clickable world” is by analogy to the two-dimensional World Wide Web with which we interact every day. The United States Supreme Court has long recognized the internet as a “dynamic, multifaceted [medium] of communication.” Its 1997 decision Reno v. ACLU'4 struck down part of the Communications Decency Act of 1996 for infringing online free speech rights. In that case, the Court drew its own analogy to underscore the importance of online speech when it observed that, online, “any person . can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” Soapboxes and pamphlets are historic forms of political expression that were sacrosanct to those who wrote the First Amendment.

The Court’s use of these analogies conveyed its conviction that digital speech should receive just as much protection as any form of communication. Hyperlinks are a key mechanism by which internet users convey information. Whereas an activist 250 years ago would have stood at the street corner handing out written pamphlets, today’s activist conveys his message by posting a tweet containing a hyperlink to a page with more information. By pointing internet users to another publication, a hyperlink says, “look here for evidence that supports what I’m saying.” It is little wonder, then, that people have long viewed hyperlinks as key tools for expression. Tim Berners-Lee, the father of the Internet, said it best in 1997: “[t]he ability to refer to a document (or a person or anything else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.”223 224

Although courts have not addressed the First Amendment’s application to hyperlinks as often as one might expect (perhaps because the conclusion is obvious), there is judicial support for the proposition.225 The form of augmented reality I am considering in this chapter (in which viewing certain physical places triggers the display of pre-determined digital content) is little more than a system of three-dimensional hyperlinks - the World Wide Web stretched into a genuine webbing over the world. How users “click” on these links will vary. The first smartphone-based AR apps used QR codes as the physical “markers” that trigger the automatic display of digital content. Today’s AR technology no longer relies solely on QR codes; “markerless AR” looks for any pre-programmed shape or pattern and displays the appropriate digital content when it recognizes the object. Visions of an AR-infused world have long included scenes in which one can walk down the street wearing AR eyewear and seeing digital objects blended into the real world just by looking around. Exactly as with two-dimensional hyperlinks, however, what a user sees through her AR eyewear when looking at a physical “trigger” depends entirely on the coder’s choice of digital information with which to “link” it.

In most conceivable circumstances, that choice will involve some level of expressive “speech” - especially because the person writing the code can choose from literally any content in the world when making that connection. More often than not, the coder will intend to communicate some sort of message through his choice of digital content and in his choice of who or what to associate that content with. For example, as part of their 2011 Re + Public collaboration, the Heavy Projects and the Public Ad Campaign used AR to “filter” outdoor advertising and replace it with original street art. Looking through an AR app, outdoor commercial advertisements were overlaid with political or artistic messages. One such pointed message, as discussed in Chapter 5, caused the image of “Captain Barbossa” in the poster for a Pirates of the Caribbean movie to morph before a user’s eyes into the face of Goldman Sachs CEO Lloyd Blankfein - conveying the artist’s message that he is the “real pirate”.

We will see plenty of user-generated content associated with, and displayed on top of, physical places as well. Much of this will be a mere extension of today’s social media. For example, the current Foursquare app keeps track of my location via GPS and pushes me user reviews of establishments when I arrive at them. (Fig. 6.2) Adding AR to that app would simply provide another way to display the data (and perhaps use the geofencing infrastructure of an AR network to trigger the alerts more accurately.)

Of course, this technology could (and will) be implemented in creepy, offensive and invasive ways, as well. For example, popular illustrations of our augmented future have shown facial recognition technology and AR being used to convey messages about people such as “Don’t trust this guy!” or “Slutty Ex-Girlfriend.” (Fig. 6.3) A scene from Daniel Suarez’s novel Freedom™ has characters using AR glasses to see credit scores and banking information floating over the heads of everyone around them. Others have depicted geotags used by thieves to indicate when residents are away from home or have just purchased something worth stealing.

But the possibility that speech rights can be abused is why the courts have never applied the First Amendment’s command that there be “no law” abridging the freedom of speech in an absolutely literal way. The law has continued to regulate expressive activity that goes beyond the bounds of what we recognize as “free speech,” including defamation, false advertising, criminal conspiracy, and infringement of

FIGURE 6.2

Foursquare already provides location-based user-generated content.226

intellectual property rights. The same legal boundaries that have governed speech in pamphlets and Twitter feeds will continue to apply in the augmented space. So to answer the question of whether the First Amendment will protect the right to augment reality, the answer must be “yes - to the same extent that it protects speech in any other format.” In order to make sure we use the right legal principles and afford the

FIGURE 6.3

An illustration of potential ways in which real-time augmented data will be associated with places and people.

proper level of protection to augmented content, it will be important to think clearly about that content and recognize it for what it is: speech.

ONE COLLATERAL BENEFIT FOR LAND OWNERS: DIGITAL GRAFFITI

Another Re + Public campaign highlights a potential upside to AR for land owners and the public alike: digital graffiti.

There is a wall at Houston & Bowery Street in New York City that has been the site of street art for decades. The first mural was painted there in 1982, but soon afterwards it was overrun with advertisements and graffiti. In 2008, however, the owner collaborated with a number of artists to create a new series of murals. In June 2012, as part of the Re + Public collaboration, the Heavy Projects used augmented reality to create a virtual history of the famous mural site, allowing users to view each piece as it originally appeared.227

The Bowery Wall project highlights several aspects of augmented public art that could be beneficial for all involved. First, it demonstrates a way to add value to a

FIGURE 6.4

SCARCITY IN AUGMENTED REAL ESTATE

Property values are driven by scarcity. As the old maxim goes, land is one thing “they ain’t making any more of.” Although the following observations do not deal with real property rights per se, they illustrate how the same principle will work in AR.

WHEN EVERYONE WANTS TO USE THE SAME PLATFORM

So far, this discussion has assumed that anyone who wants to will be able to create their own digital experience on the same physical surface or geolocation. Technically, that will always be true because someone can always create a new app (or a new “channel” within an app such as Layar, junaio, or Aurasma) in which to deliver their content. That is the predominate model for today’s nascent AR market.

As more people begin to consume AR content, there will inevitably be consolidation around a finite number of more popular apps. That is human nature. For example, according to Nielsen, the average U.S. home now receives 189 television channels, a record-high number that has jumped up from 129 in 2008. But the average number of TV channels watched is 17.228 Humans simply cannot handle choosing between too many options.

We see a similar phenomenon online. No matter how many generic top-level domains are added to the Web, companies still fight for access to the “.com” associated with their name - because that is still where customers instinctively look first. And despite the fact that almost every commercial website seems to have some social functionality to it nowadays, people still conduct the vast majority of their online interactions through a select few social media sites. (As of this writing, those are primarily Facebook, Twitter, LinkedIn, and Pinterest). Which of those are the most popular at any given time may change rapidly in a short amount of time, but again, people can only handle so many options to choose from. Moreover, most of these sites need a sufficiently large user base before any one user can truly get the most out of the experience. By necessity, only a select number of sites will attract that many users.

The same will be true in AR. Although the same piece of property could be augmented by thousands of bespoke apps and channels, that will almost never happen -because no one will use the vast majority of them.

Current AR apps vary in how they manage overlapping content. In some, targets are available for augmentation on a first-come, first-served basis. All users (or, at least, all those who don’t pay for more options) see their content through the same app. If one person associates digital content with a particular physical place or thing first, that target is no longer available to other users through that app. Other apps offer a visual discovery function that will display each of the available options for objects that have been augmented more than once. In the current version of Layar, for example, a list of layers and campaigns that have augments on top of the same target will be shown first after the visual search. Users can choose which layer or campaign they would like to see from the results and launch it separately.229

Either way, viewing options within individual apps will be limited. And with limitations come conflict. How will we decide who has the right to augment a particular place or thing through a particular app? And how will we regulate the digital “land rush” within those platforms, particularly if any of those platforms are publicly owned?

The analogy to domain names suggests potential solutions. When domain names became available to the general public, the Internet Corporation for Assigned Names and Numbers (ICANN) created the Uniform Dispute Resolution Policy (UDRP). This procedure, which most domain name registrants agree to as part of the terms and conditions of their registration, offers a relatively inexpensive means of combatting cybersquatters - those who rush to buy the “.com” or “.net” version of a name in order to sell it to the person to whom it rightfully belongs. Congress also passed the Anti-cybersquatting Consumer Protection Act in 1999,230 designed to give rights holder clearer protection online. Of course, these mechanisms are designed to protect intellectual property (primarily trademark rights), rather than real property interests. But the analogy to “squatting” on “land” has always been apt.

Whether similar protections will be needed or useful in virtual space depends on how the market for such content, and the means of distributing it, unfolds. If AR continues to be just one of many forms of digital content delivered via the internet, then it will continue to be governed by the same rules that apply to any online content. As long as AR stays within the walled gardens of private apps, the policies for determining who gets to augment what and how will remain up to the app’s owner - at least until the point where a particular augmentation infringes on someone else’s intellectual property or other rights. For example, as of this writing, virtually every business in the developed world wants to have its own Facebook page. Facebook is free to adopt its own means of policing (or not policing) how its Page names are allotted, and it has experimented with allowing trademark owners to reserve Pages under their respective names. Ultimately, though, in order to stop someone from using a name, it is up to a trademark owner to prove that their mark is being infringed, whether that occurs on Facebook or anywhere else.

The rules will get more complicated when (as I think is inevitable) AR becomes a “mesh” experience, combining content from the internet along with signals generated by wearable devices and the Internet of Things infrastructure. In that scenario, those who own the land or equipment from which the signals are generated may retain some ability to control how those signals are used. Even at that point, however, legal limitations on the content will depend on what basis others have to claim rights in what someone else is doing. How that applies to such a hypothetical mesh network remains to be seen.

Only to the extent that the public comes to depend on a common network for delivering AR content will the rules governing the triggering of that content come to resemble today’s governance of internet domain names. And such a system may very well become tied to real property rights in interesting ways. For example, imagine all governmental AR information being distributed on a network called “.gov.ar,” except that what comes before the “.gov” portion is not a trademark or other name, but rather a physical address. So, for example, residents jogging through New York City’s Central Park might use the “centralpark.nyc.gov.ar” channel to visualize directions to all available pedestrian paths, while the same “.gov.ar” channel might display property tax information over your home or the details of local ordinances whenever you cross municipal boundaries. Switch to “.social.ar” in any of those venues, however, and you might see the past and present locations of your friends, along with the virtual tags they’ve left for each other. “PublicSafety.ar,” on the other hand, might visualize crime statistics for any given address.

The actual content and number of channels would be limited only by bandwidth, funding, and imagination. Within each channel, it would then be necessary to adopt a means of arbitrating who has the rights to associate virtual content with a particular physical location.

SACRED GROUND: WHEN (AUGMENTED) WORLDS COLLIDE

For a brief time several years ago, I got to be part of a legal team helping a Native American tribe attempt to protect a particular piece of land. This land was the site of an impressive rock formation (Fig. 6.5). To the company who owned the mineral rights to that land, that rock was the most convenient place to drill an access tunnel to the mine underneath. But to the tribe, it was sacred. Their ancestors had performed religious ceremonies on that particular rock formation for centuries. The culture and beliefs that the tribe held dear required that the ceremonies continue to be held there. To them, this location was irreplaceable, and neither side saw room for compromise.

Although augmented uses of physical places are not likely to have the same depth of religious or cultural significance anytime soon, I do expect many analogous disputes to arise as a result of AR, and that some of them will be contested with similar intensity. One of the defining characteristics of AR is its interconnectedness with physical places and things. In addition, AR’s early adopters still constitute a subculture defined by their shared passion for the medium, which reinforces their collective sense of identity. These factors can combine to create intense loyalties to a shared AR experience.

The best example of this phenomenon that I’ve seen to date in the augmented space is the passionate community that has built up around the sci-fi themed AR game Ingress. Players’ social media posts are constantly updated with comments and

FIGURE 6.5

Sacred ground.22

developments within the game. “Factions” of players exist all over the world, crossing generational, gender, and ethnic boundaries. I’ve heard first-hand tales of how the game’s requirement to get out and physically interact with virtual “objects” has contributed to in-person meet-ups and genuinely enriched human relationships. It is, by all accounts, a vibrant community.

Imagine, then, what would happen if another AR game with a completely different vibe and culture were to superimpose itself over the same physical locations used by Ingress players. (This is actually a realistic possibility, as “the developers of Niantic Labs intend to implement a whole platform for Ingress augmented reality games. Their plan is to use a variety of operating time and the elements to create a series of Ingress API, through which third-party developers can create their own game projects.”231 232) If two overlapping games - say, a techno-thriller mystery and a Dance Dance Revolution-esque flash mob - require players to show up at the same times and places, clashes of personality are bound to ensue.

Now multiply that scenario by a dozen, a hundred, or even a thousand. The beauty of AR is that an infinite series of digital experiences can be overlain atop the same physical place, but that will sometimes prove to be its bane as well. Like loquacious moviegoers, the way in which some people enjoy one augmented experience in a place may be inherently disruptive to someone else’s ability to appreciate a different digital experience in the same place.

One solution to this problem will be in the hands of those who own the physical property on which the experience takes place. To varying degrees, they will have the power to prescribe rules of conduct, and to eject those who refuse to follow those rules. If a particular location proves to be a popular locale for augmentation, owners may require all comers to quietly respect all others, or else make it easier for members of a particular group to enjoy their own augmented experiences over others. Of course, unless the owner is also the experience provider, they will expect compensation for their efforts, and will likely coordinate them so as to maximize foot traffic to any businesses located on the property. Before long it may become customary for a parcel of commercial real estate to have both physical and digital developers, and those may not be the same people.

Ingress and other games tend to locate their digital objects in public places. This brings its own limitations on personal conduct, as well as on the government’s ability to prohibit expression based on its content. Could we soon see a First Amendment lawsuit challenging censorship of augmented activity on public land?

Ultimately, the most effective solution in cases of conflict between different augmented uses of a place will come down to common courtesy. As we’ll explore further in Chapter 11, though, the basis for such norms will lose some of their “commonality” the more our experiences of the physical world become digitized. At least when two people are together in the same physical place - without digital distractions - they innately recognize on some level the concept of shared experience and, hopefully, responsibility. They recognize that both will suffer if one person does something destructive to the shared space, and, conversely, that respecting the other person’s interests will likely lead them to reciprocate.

We lose some of that sense when our attention is given over to a digital world that is ours alone to control and experience. This phenomenon is already evident with mobile phones and game consoles, so we can expect it to multiply when groups of people are competing to digitize the same space. This does not mean that civility is impossible, but it does mean that acting civilly will become more of a conscious choice and less of an instinct.

OTHER INTERSECTIONS BETWEEN PROPERTY RIGHTS AND AR

AN INVITATION TO TRESPASS?

The flip side of “digital developers” and planned AR gaming activities is when people congregate on someone’s property for the same activities uninvited. Physically entering land that someone else has the right to possess is called trespass. Once a trespasser is on someone else’s land, they are liable for any damage resulting from their presence. Avoiding those circumstances is very likely one of the major reasons why Ingress and other AR experiences drive their users to publicly owned lands. Although the person trespassing would be the one most directly responsible for trespassing onto private property, it is not difficult to imagine circumstances in which an AR experience designer is held jointly liable for the trespass (and any resulting damage) because the AR experience led users to onto the private property.

Designers should also keep in mind how users are likely to access an intended destination, even if it is located in a public or otherwise permissible location. If the only, or the best, way to access the destination is by crossing private property, or if it’s reasonable to expect that more people will arrive than the destination can accommodate, then trespasses are bound to occur.

Trespasses can pose legal risks for land owners too, in narrow circumstances. For example, a landowner may be held liable when he knows people are trespassing on his property and that there are hidden dangers they might encounter, but does nothing about it. This may be a particular concern if, instead of chasing AR-using kids off his lawn, a property owner instead provides digital content from his own location. If the augmentation is inviting enough, yet masks hidden dangers or otherwise poses risks that minors may not recognize, then it could pose what’s called an “attractive nuisance.”

The prevailing view of the attractive nuisance doctrine is set out in Section 339 of the Restatement (Second) of Torts. Under that standard, a possessor of land is liable for physical harm to trespassing children where the injury is caused by an artificial condition on the land if:

a. The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass;
b. The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
c. The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
d. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and
e. The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

To put this in context: I recently experienced “artificial conditions” that had “attractive nuisance” (figuratively) written all over them. Walking through a public garden area in a major American downtown, I saw steep cement walls with narrow steps just begging to be climbed (Fig. 6.6). There were small, obligatory signs warning people not to do so, of course, but nothing that a minor would recognize. Likewise, the same park featured expansive retaining pools that certainly looked like swim-

FIGURE 6.6

A public water garden.233

ming pools, although the water was little better than sewer runoff. Again, the tiny signs nearby did nothing to stop hordes of young people from wading right in.

How might this doctrine apply in an augmented world? That depends entirely on how its digital infrastructure develops. I’ve included this discussion, however, because it’s easy to picture circumstances in which large visualizations of digital signage, game elements, characters and other displays are made to appear over land that isn’t meant to be physically entered - the middle of a road or a construction site, for example - but that nevertheless pique the curiosity of children beyond the point of resistance. In those circumstances, land owners would be well-advised to take stock of potential dangers and use reasonable care in preventing injury.

NUISANCE

Nuisance is an intentional or wrongful act that substantially and unreasonably interferes with a land owner’s use and enjoyment of a property. Typically, this takes the forms of sound, light, vibrations, or even smells that disturb people on a particular parcel, even though nothing tangible invades the property in a way that would constitute a trespass. Substantial interference is easy to find when it can be shown to diminish the market value of the land, but it can also occur when residents persuade a judge that it prevents them from conducting regular activities on their property (like sleeping and socializing) as they used to do.

Where I live, it’s often difficult to get to sleep at night during the summer because people are always setting off large fireworks - the classic definition of a nuisance. It’s easy to picture digital content also causing disturbances on adjacent properties, especially if there is an audio component to the augmentation that can be overheard, or if it draws large groups of people nearby or at odd hours. Even if the augmented experience itself is personal and evanescent, the hardware that creates it may not be. The infrastructure of an augmented world could conceivably create hums, eyesores, vibrations, and other nuisances to neighbors.

Light may also constitute a nuisance, especially at night. If the augmentation consists of projection mapping or other plainly visible displays, that light could easily spill into unwanted places. In the still-distant future, when AR technology matures and becomes an integral part of everyday life, we could even see things become nuisances because they diminish or interfere with digital, rather than physical, enjoyment of a property - such as by causing signal interference that impairs a home’s virtual assistant, or by overtaxing the local digital infrastructure so that property owners can’t get the content they need.

Whether any interference with the enjoyment of land is sufficiently “substantial” and “unreasonable” to constitute actionable nuisance is a case-by-case determination. Interference with an owner’s interest is unreasonable if the seriousness of the harm outweighs the utility of the defendant’s actions.

PHYSICAL AND VIRTUAL EASEMENTS

Although the concept of a landowner having complete dominion over their property is simple in theory, in practice people often need to make certain uses of land belonging to others. That’s where easements come in. An easement is a limited right to make use of someone else’s land. Typically, these arise by private agreements, but they can also be implied by circumstances in situations of strict necessity. Once granted, easements typically become part of the rights that “run with the land,” meaning that subsequent owners will be bound by them.

In contemporary American life, by far the most prevalent examples of easements are those granted to cable companies and utilities to run wires, pipelines, and similar infrastructure through, over, or under a property. Those “affirmative” easement rights may also impose “negative” easement restrictions on the landowner, such as not being able to plant trees near an underground pipeline.

The augmented world will see its share of these sorts of easements. Work is already underway in places like Oakland County, Michigan to construct the infrastructure necessary for connected vehicles to communicate with each other and with a central, public network. That infrastructure will likely consist of digital devices placed at regular intervals along county roads, not unlike the road signs and traffic lights already present. As the applications for augmented municipal and commercial services grow, these networks will need to be expanded. To the extent such infrastructure needs to be installed on, through, or under private property, easements will need to be obtained (or, in the case of public projects, imposed through condemnation).

Similarly, to the extent that the industry adopts the micro and nanotaggant devices I have predicted (in which tiny machines that serve as signal routers and pinpoint accurate location beacons become implanted in virtually everything), the property law implications will get especially interesting. More than likely, permission will be

needed from every landowner in the entire area where such devices are installed. Depending on how easy it is to detect and control such devices, however, it may be very difficult to control their distribution. And if the digital communications networks of tomorrow become as dependent on such microscopic devices as today’s systems are dependent on the internet’s backbone of transoceanic cables and server farms, then property law may lose its ability to regulate such devices, just like it lost its control over airplanes plying overhead.

It will also be interesting to see if property law will ever allow or require virtual easements for the display of digital information over a particular piece of land. Much of this chapter has already been dedicated to establishing the proposition that augmented digital information does not occupy the physical space in which it is depicted, and thus is outside the bounds of real property law. If (and only if) specific augmented information became so important and universally relied upon - the equivalent of today’s traffic control system for automobiles, for example - could the prospect of applying real property law to digital information ever make sense. Only in that case would one particular display of digital information in a certain physical location displace, and be mutually exclusive with, the display of any other digital content in the location. In effect, the law may actually treat such digital content as if it were just as physical as it pretended to be. Even in that case, however, our legal system would need to moderate its perspective of digital content as expressive speech rather than as a utilitarian object. That would be a doctrinal sea change, and thus is unlikely anytime soon.

ENVIRONMENTAL PROTECTION LAWS

The foregoing discussion mentioned the property law implications of ubiquitous mechanical taggants of microscopic or even nano-scale size, distributed throughout the physical environment. Such a system would implicate more than just property law, however. It is also far too easy to imagine the potential effects that such devices would have on human health and the natural environment.

Indeed, even though AR-capable nanotaggants may accelerate the problem, there are already enough nanodevices in use for people to be talking about these issues. This is actually an area where, for once, the government is ahead of the game. In 2000, it created the National Nanotechnology Initiative,234 which “serves as the central point of communication, cooperation, and collaboration for all Federal agencies engaged in nanotechnology research.” In 2008 and 2011, the NNI published a Nanotechnology Environmental, Health, and Safety Research Strategy,235 which is intended to provide a research framework in the core areas of human exposure, the environment, human health, and measurement tools, and risk assessment and risk management, along with research needs in predictive modeling.

Nevertheless, experts already see a lot of nanotech litigation coming.236 “Product liability and toxic exposure attorneys,” says Ronald Wernette, author of the Nanotort Law Blog, “suggest that the first civil tort suits will be filed within the next five years. They anticipate a variety of claims, including consumer claims based on the fear of future physical harm. At issue could be whether manufacturers of consumer products appropriately tested nanomaterials, whether the government approved the product, and whether the potential harms were adequately disclosed. ... Employees of nanomaterial manufacturers are likely to bring exposure claims, and . theories applied to nanotechnology claims will include defective design, defective manufacturing, and failure to warn claims.”237

This could all actually be positive news for companies thinking about constructing a nanotaggant network; maybe by the time the taggants are ready for prime time, either the NNI or the courts will have established some helpful guidelines for avoiding liability.

Even when digital information masquerades as physical, it is important to remind ourselves of the important differences between the two. This chapter has explored one of those reasons - namely, that certain legal principles apply only to real property. The next chapter discusses another difference - namely, the fact that only physical objects can hurt you.

U.S. Const. amend I. The actual text of the First Amendment applies only to Congress, but the courts have long ago established that the Fourteenth Amendment’s guarantee of due process resulted in the same restrictions being applicable against state and local governments as well.

Snyderv. Phelps, 131 S. Ct. 1207, 1215-16 (2011) (internal quotations, citations, and alterations omitted).

Bartnicki v. Vopper, 532 U.S. 514 (2001).

Id. Similarly, on April 20, 2010, the Supreme Court held in United States v. Stevens that the government cannot hold criminally liable someone who distributes a tape of an illegal act (in this case, animal “snuff’ films) that he/she was not complicit in committing. United States v. Stevens, 559 U.S. 460 (2010).

5New York Times Co. v. United States, 403 U.S. 713 (1971).

Jeffrey Rosen, The Right to Be Forgotten, 64 Stan. L. Rev. Online 88 (February 13, 2012).

See Cal. Business and Professions Code § 22580-82 (West 2014).

^Florida Star v. B.J.F., 491 U.S. 524 (1989).

Woodrow Hartzog and Evan Selinger, Obscurity: A Better Way to Think About Your Data Than “Privacy” , The Atlantic (January 17, 2013) http://www.theatlantic.com/technology/archive/2013/01/ obscurity-a-better-way-to-think-about-your-data-than-privacy/267283/.

Colum Lynch, Brazil’s president condemns NSA spying, Washington Post http://www.washing-tonpost.com/world/national-security/brazils-president-condemns-nsa-spying/2013/09/24/fe1f78ee-2525-11e3-b75d-5b7f66349852_story.html (Sept. 24, 2013).

“William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960).

Prosser also articulated a fourth means of invading someone’s privacy—namely, by “misappropriation of [the person’s] likeness” for commercial gain. Since then, however, the interest protected by this body of law has evolved to look much more like property that an individual can own, license and commercialize rather than simply a means to avoid unwanted attention. Today it is more commonly known as the “right of publicity,” a phrase recognizing it as a power held by its owner, rather than by the phrase “misappropriation of likeness,” which emphasizes the negative result of what the infringer takes away. For that reason, many treatises and courts treat the right of publicity as a matter of intellectual property rather than of privacy, and this book will do the same.

See New Jersey v. Dharun Ravi,Wikipedia (June 5, 2014)http://en.wikipedia.org/wiki/New. Jersey_v._Dharun_Ravi.

18 U.S.C. §§ 2510-2522 (2012).

18 U.S.C. §§ 2701-2712 (2012).

Pub.L. 104-191, 110 Stat. 1936 (1996)(codified as amended at 29 U.S.C. § 1181 et seq. and scattered sections of 42 U.S.C.).

15 U.S.C. §§ 6501-6506 (2012) Pub.L. 105-277, 112 Stat. 2581-728(1998).

(Pub.L. 106-102, 113 Stat. 1338)(1999).

U.S. const. amend. IV.

Riley v. California, No. 13-132 (June 25, 2014), available at http://www.supremecourt.gov/ opinions/13pdf/13-132_8l9c.pdf.

Pub. L. 107-56m 115 Stat. 272 (2001).

Charles Arthur, Google ‘Bans’ Facial Recognition on Google Glass - But Developers Persist, The Guardian (June 3, 2013) http://www.theguardian.com/technology/2013/jun/03/google-glass-facial-recognition-ban.

Id.

Meghan Kelly, Facebook May Use Your Profile Photo in its Facial Recognition Tech,” Venture Beat (August 29, 2013) http://venturebeat.com/2013/08/29/facebook-facial-recognition/.

Sarah Freishtat, Just a Face in a Crowd? Scans Pick Up ID, Personal Data, The Washington Times (July 26, 2013) http://www.washingtontimes.com/news/2012/jul/26/just-a-face-in-a-crowd-scans-pick-up-id-personal-d/#ixzz2lR6KFeSs.

26Id.

'Face-Recognition App Lets You Identify Kids That Might be Missing, Advertising Age (May 31,2013) http://adage.com/article/creativity-pick-of-the-day/face-recognition-app-lets-identify-kids-missing/ 241813/.

Tim Worstal, The Killer Google Glass App That Google Won’t Let You Have, Forbes (November 20, 2013) http://www.forbes.com/sites/timworstall/2013/11/20/the-killer-google-glass-app-that-google-wont-let-you-have/ .

Federal Trade Commission, Facing Facts: Best Practices for Common Uses of Facial Recognition Technologies (2012).

The Federal Trade Commission, Face Facts: A Forum on Facial Recognition Technology (December 8, 2011).

Federal Trade Commission, FTC Recommends Best Practice for Companies that Use Facial Recognition Technologies, FTC.gov (October 22, 2012) available at http://www.ftc.gov/news-events/press-releases/2012/10/ftc-recommends-best-practices-companies-use-facial-recognition.

Peter Cosgrove, Muslim Woman Cannot Wear Veil in Driver’s License Photo, USA Today (June 6, 2003) http://usatoday30.usatoday.com/news/nation/2003-06-06-license-veil_x.htm.

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of NY, 447 US 557, 563-64 (1980) (citations and quotations omitted).

Federal Trade Commission, supra note 29, at 21.

Letter from All Franken, Chairman of Subcom. on Privacy, Technology, and the Law, to Lawrence E. Stricklmg, Assistant Secretary for Communications and Information, U.S. Department of Commerce (November 21,2013) available at www.franken.senate.gov/files/documents/131131NTIAFacebookLetter.pdf.

Federal Trade Commission, supra note 29, at 7.

FTC, “Snapchat Settles FTC Charges That Promises of Disappearing Messages Were False,” May 8, 2014, available at http://www.ftc.gov/news-events/press-releases/2014/05/snapchat-settles-ftc-charg-es-promises-disappearing-messages-were.

Federal Trade Commission, Protecting Consumer Privacy in an Era of Rapid Change, 45-46 (March 2012) available at http://ftc.gov/os/2012/03/120326privacyreport.pdf.

The report was called “Faces of Facebook: Privacy in an Age of Augmented Reality” and authored by Alessandro Acquisti. It appears to no longer be available at the location to which the FTC’s report cites, or on any other website that this author has located. But a lecture by Acquisti on a similar topic is available here: https://www.youtube.com/watch?v=Kcz0hUtYVXc.

i0Google Glass: What are Some Potential Solutions to Issues Regarding Google Glass and Privacy? Quora (June 6, 2014, 7:08 PM) (March 12, 2013); see also Robots.txt for Your Face, (March 23, 2013) http://stopthecyborgs.org/2013/03/23/robots-txt-for-your-face/>.

41Google Glass, supra note 36.

Chris Matyszczyk, Street lights to spy on everything that happens in Vegas? CINET (November 9, 2013) http://news.cnet.com/8301-17852_3-57611630-71/street-lights-to-spy-on-everything-that-hap-pens-in-vegas/ .

See Torin Monahan, Surveillance and Security: Technological Politics and Power in Everyday Lief 158 (2006)

"Roberto Baldwin, Sergey Brin Finally Lets Someone Else Where Google Glass, Wired (May 29, 2012) http://www.wired.com/2012/05/sergey-brin-finally-lets-someone-else-wear--google-glass/.

Saul Berenbaum, Google Glass Explorer Edition has a 30-minute battery life while shooting video, Digital Trends (April 25, 2013) http://www.digitaltrends.com/mobile/google-glass-30-minute-videobattery/#ixzz2lb9DqSYX.

Kapture, Kapture: The Audio-Recording Wristband. Kickstarter (October 3, 2013) http://www. kickstarter.com/projects/1483824574/kapture-the-audio-recording-wristband.

Elyse Betters, “Apple’s iBeacons explained: What it is and why it matters,” Pocket-Lint, September 18, 2013, available at http://www.pocket-lint.com/news/123730-apple-s-ibeacons-explained-what-it-is-and-why-it-matters/

Ray Locker, Pentagon Agency Creating Digital Map of the World, USA Today (October 26, 2013) http://www.usatoday.com/story/nation/2013/10/25/nga-digital-map-world-updated/3189781/.

The defense agency working on next-generation digital maps.

When the government and the private sector have access to high-fidelity geolocation data and a geolocation-aware sensor infrastructure, merely walking down the street with one or more sensor-enabled devices on our persons will leave behind so much data about our physical location that it may well become possible to create precise maps of our every step going back hours, days, or even longer. Add to that the digital data we’ll leave behind in each of the physical objects with which we interacted along the way. Everything we touch - the toothbrush we use in the morning, our clothing, doors through which we pass, the pavement we step on, even the plastic fork from the street-side falafel stand - could potentially be capable of not only recording their interactions with us, but also transmitting that data to one or more servers, which then collect, collate, and make the data available for reporting out.

Even this possibility could one day seem tame if a system of trackable nanotag-gants ever truly becomes reality. With that technology, it could become possible for the first time to literally destroy the possibility of privacy altogether-at least when it comes to concealing your physical location. Consider: the nanotaggants that the military is reportedly developing are intended to be sprayed onto enemy combatants so they can be tracked in situations where direct surveillance is impossible, such as urban combat. Because these devices exist on a micro or nano scale, they’re invisible to the human eye. Ideally, the soldier won’t even know he’s been tagged, let alone be

Edward Wyatt, F.T.C. Says Webcam;s Flaw Put Users’ Lives on Display, The New York Times (September 4, 2013) available at www.nytime.com/2013/09/05/technology/ftc-says-webcams-flat-put-users-lives-on-display.html?_r=0.

50Id.

Lucian Constantin, “Popular Internet-of-Things devices aren’t secure,” Computerworld, July 30, 2014, available at http://www.computerworld.com/article/2490587/networking/popular-internet-of-things-devices-aren-t-secure.html

Id.

“The internet of things - the next big challenge to our privacy,” The Guardian, July 28, 2014, available at http://www.theguardian.com/technology/2014/jul/28/internet-of-things-privacy.

55565 US___, 132 S.Ct. 945 (2012),

In re Smartphone Geolocation Data Application, 2013 U.S. Dist. LEXIS 62605, at *45 (E.D.N.Y. May 1, 2013); see also United States v. Caraballo, Case No. 5:12-cr-105 (D. Ver. August 7, 2013) (collecting cases).

Federal Communications Commission, Location-Based Services: An Overview of Opportunities and Other considerations (May 2012) available at http://apps.fcc.gov/edocs_public/ attachmatchfDOC-314283A1.pdf.

Id. at 2.

“The internet of things - the next big challenge to our privacy,” The Guardian, July 28, 2014, available at http://www.theguardian.com/technology/2014/jul/28/internet-of-things-privacy.

Id.

“Watch Your Privacy,” available at http://sndrv.com/watchyourprivacy/.

Id.

'Augmented reality map of Wizarding World of Harry Potter available in “USA Today”, Orlando Attractions, (January 22, 2012), available at http://attractionsmagazine.com/augmented-reality-map-of-wizarding-world-of-harry-potter-available-in-usa-today/#sthash.AAqvMcLy.dpuf.

Starbucks, Starbucks Cup Magic, Youtube (November 8, 2011) http://www.youtube.com/ watch?feature=player_embedded&v=RWwQXi9RG0w.

Absolut Vodka, Absolute Truths (September 21,2012) https://itunes.apple.com/us/app/absolut-truths/ id492665840?mt=8.

Disney, Disney Magic Mirror (September 23, 2013) https://itunes.apple.com/us/app/disney-magic-mirror/id591987216?mt=8.

The Lego store kiosk.

Karine Joly, Beyond the boring #highered ad banner: Augmented reality done right by Simpson College, College Web Editor (Mar. 25, 2013) http://collegewebeditor.com/blog/index.php/archives/2013/03/25/ beyond-the-boring-highered-ad-banner-augmented-reality-done-right-by-simpson-college/

David Kiefaber, National Geographic Lets You Pet Dinosaurs at the Mall: Augmented Reality Goes Jurassic (November 17, 2011) http://www.adweek.com/adfreak/national-geographic-lets-you-pet-dinosaurs-mall-136591.

Yi Chen, BBC Augmented Reality Brings Artic Animals to Life in Local Malls, (June 1, 2012) http:// www.psfk.com/2012/06/bbc-arctic-augmented-reality.html

See Xbox Marketplace, Kinneclimals Now With Bears!, Xbox.com (October 1,2011) http://marketplace. xbox.com/en-US/Product/Kinectimals/66acd000-77fe-1000-9115-d8024d5308b3#/Home.

Malory Russell, 11 Amazing Augmented Reality Ads, (January 28, 2012) available at http://www. businessinsider.com/11-amazing-augmented-reality-ads-2012-1?op=1.

Disney Parks, Disney Villans Take Over the Streeds of New York City, Youtube (December 9, 2011) http://www.youtube.com/watch?feature=player_embedded&v=CGzkbx4EMR0.

nXath Cruz, Nokia’s Augmented Reality Experience Hits Malls, Creative Guerilla Marketing (November 29, 2012) http://www.creativeguerrillamarketing.com/augmented-reality/nokias-augmented-reality-experience-hits-malls/.

Aden Hepburn, Ford C-Max Augmented Reality Billboards, Digital Buzz Blog (February 28, 2011) http://www.digitalbuzzblog.com/ford-c-max-augmented-reality-digital-billboards/.

The “bystander effect,” or “Genovese syndrome,” is hardly unique to the Netherlands; it has been studied at least since the infamous 1964 murder of Kitty Genovese in New York, when thirty-eight neighbors heard the crime take place but took no action. See Murder of Kitty Genovese, Wikipedia, http://en.wikipedia.org/wiki/Murder_of_Kitty_Genovese (last visited June 9, 2012)

Clay Dillow, Video: Augmented Reality Billboard Installed in Amsterdam, to Educate and Shame Passers-By, Popular Science (April 29, 2010) available at http://www.popsci.com/technology/ article/2010-04/dutch-psa-uses-augmented-reality-shame-citizens-not-helping-their-countrymen.

Discover Hyundai, Hyundai Accent 3D Projection Mapping, Youtube (April 5, 2011) http://www. youtube.com/watch?feature=player_embedded&v=tu0TRA6a21Q.

See Digital Buzz Blog http://www.digitalbuzzblog.com/tag/3d-projection-mapping/ (last visited June 9, 2014).

U.S. PatentNo.,8,510,166,(filedMay 11,2011), available at .

Id.

Kate Freeman, Are Brain Waves and Heartbeats the Future of Passwords? [VIDEO], Mashable (April 24, 2012) available at http://mashable.com/2012/04/24/brain-waves-passwords/.

Stephen Vagus, Google Glass could serve as a new mobile commerce platform, Mobile Commerce Press (July 1, 2013) http://www.mobilecommercepress.com/google-glass-could-serve-as-a-new-mobile-commerce-platform/857436/.

U.S. Patent No. 8,138,930(filed January 22, 2008), available at http://patft.uspto.gov/netacgi/ nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum. htm&r=1&f=G&l=50&s1=8,138,930.PN.&OS=PN/8,138,930&RS=PN/8,138,930.

22Id.

See Keiichi Matsuda, Augmented (hyper)Reality: Domestic Robocop Youtube (January 6, 2010) www.youtube.com/watch?v=fSfKlCmYcLc.

2415 U.S.C. §1125 (2012).

Id.

Rebecca Tushnet, Rebecca Tushnet’s 43(B)log, http://tushnet.blogspot.com/ (last visited June 9, 2014).

The L’Oreal ads banned by U.K. regulators.

See Miikka Kukkosuo, Supponor gets EUR 6M in Series A funding, Arctic Startup (September 2, 2008) available at http://www.arcticstartup.com/2008/09/02/supponor-gets-eur-6m-in-series-a-funding.

Mission, Public Ad Campaign, http://www.publicadcampaign.com/mission.html (last visited June 9, 2014).

Id.

Brian Wassom, [Interview] BC “Heavy Biermann: Taking Back Public Spaces With AR, Wassom. com (January 31, 2012) http://www.wassom.com/interview-bc-heavy-biermann-taking-back-public-spaces-with-ar.html.

Id.

National Policy & Legal Analysis Network to Prevent Childhood Obesity, Digital Food Marketing to Children and Adolescents (October, 2011).

Id. at 4.

Id.

Complaint and Request for Investigation at 26, Center for Digital Democracy, et al. before the Federal Trade Commission (October 19, 2011) available at http://digitalads.org/how-youre-targeted/case-studies/ftc-complaint

12 U.S.C. § 45(a)(2) (2012).

15 U.S.C. § 45

100

12 U.S.C. § 45(b) (2012).

101

Sheila Shayon, PepsiCo Refutes Consumer Watchdog’s Deceptive Marketing Complaint, Brand Channel (October 20, 2011), http://www.brandchannel.com/home/post/2011/10/20/PepsiCo-Frito-Lay-Refutes-Complaint-102011.aspx.

102

Id.

103

Complaint and Request for Investigation, supra note 39, at 35-36

104

See U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 924 (3d Cir. 1990).

105

I imagined a similar scenario in the first piece I published related to AR law—the short story “The More Things Change,” published in 2007 by the State Bar of Michigan. See Brian Wassom, The More Things Change (2007) available at http://www.honigman.com/media/site_files/1606_the%20 more%20things%20change.pdf.

106

"See, e.g., Southland Sod Farms v. Stover Seed Co., 108 F. 3d 1134 (9th Cir. 1997) (litigating over ads comparing competing varieties of sod); US Healthcare v. Blue Cross of Gr. Phila., 898 F. 2d 914 (3rd Cir. 1990) (litigating over claims about competing health plans); Procter & Gamble Co. v. Chesebrough-Pond’sInc., 747 F.2d 114 (2d Cir. 1984) (litigating over comparative advertising of hand and body lotions); American Home Products Corp. v. Johnson & Johnson, 577 F. 2d 160 (2d Cir. 1978) (litigating over alleged differences in the performance of pain medication).

107

Federal Trade Commisison, .com Disclosures:How to Make Effective Disclosures in Digital Advertising (March, 2013).

108

48Id. at ii.

109

Banner Blindness: Old and New Findings, Neilsen Norman Group, August 20, 2007, available at <

http://www.nngroup.com/articles/banner-blindness-old-and-new-findings/>

110

111

PatrickBateman, Sight, Youtube (July 23,2012) https://www.youtube.com/watch?v=fSU0lTCMTZw.

112

See https://paywitheaze.com/.

113

Jacob Kleinman, “New Google Glass App Lets You Order Groceries by Looking at Them,” TechnoBuffalo, August 10, 2014, available at http://www.technobuffalo.com/2014/08/10/new-google-glass-app-lets-you-order-groceries-by-looking-at-them/?utm_content=buffer7857d&utm_medium=social&utm_ source=twitter.

114

Peppet uses the term “augmented reality” much more generically than this book does, to mean “the convergence of digital and physical space generally, not merely in the real-time augmentation of digital video.” Scott Peppet, “Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts,” ___UCLA L. REV.__(2012), Working Paper Number 11-14 at 2 n.9 (August 29, 2011),

available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1919013. Nevertheless, his insights are still relevant to the AR medium as it is more commonly understood.

115

55Id. at 36.

116

Id. at 38.

117

See id. at 42.

118

'Teresa Riordan, Patents; Models that were once required in the application process find a good home, The New York Times (February, 18, 2002) available at http://www.nytimes.com/2002/02/18/ business/18PATE.html?pagewanted=all.

Augmented Reality Law, Privacy, and Ethics

119

U.S. Patent No. 8,400,548 (filed January 5, 2010) available at https://docs.google.com/ viewer?url=patentimages.storage.googleapis.com/pdfs/US8400548.pdf.

120

Chris Barry, et al., 2013 Patent Litigation Study: Big Cases Make Headlines, While Patent Cases Proliferate, available athttp://www.pwc.com/en_US/us/forensic-services/publications/ assets/2013-patent-litigation-study.pdf.

121

See Topics, Patent Lawsuit, Mashable, http://mashable.com/category/patent-lawsuit/ (last visited June 10, 2014) for articles discussing articles discussing patent disputes between major phone and tablet makers.

122

5Tomita Techs. USA, LLCv. Nintendo Co., Ltd., No. 11-Civ-4256 (JSR), 2012 WL 2524770,(S.D.N.Y. 2012)

123

Id. at *1.

124

^Id. at *3.

125

8Id. at *7.

126

Tomita Technologies USA, LLC v. Nintendo Co., Ltd., No. 11-cv-4256 (JSR), 2013 WL 4101251, at *10 (S.D.N.Y. August 14, 2013)

127

Daniel Nazer & Julie Samuels, UPDATED: Help Stop 1-800-Contacts from Abusing Patents to Squelch Competition, Electronic Frontier Foundation (April 17, 2013) https://www.eff.org/ deeplinks/2013/04/1-800-contacts-buys-patent-squelch-competition.

128

Id.

129

Anthony Ho, “Ditto Defeats Patent Claim After Teaming Up With A ‘Troll’,” TechCrunch, October

12, 2013, available at http://techcrunch.com/2013/10/12/ditto-wins-defeats-patent-claim-after-team-ing-up-with-a-troll/

130

Chris Barry, et al., Patent Litigation Study, supra note 3, at 3.

131

Id. at 3

132

U.S. Patent No. 6,624,843 (filed December 8, 2000).

133

Id. at 1.

134

See U.S. Patent No. 8,711,175 (filed August 12, 2011) bool.html&r=1&f=G&l=50&co1=AND&d=P

TXT&s1=8,275,590&OS=8,275,590&RS=8,275,590

135

See Dennis Crouch, Patent Trolls by the Numbers, PatentlyO Patent Blog (March 14, 2013) http:// patentlyo.com/patent/2013/03/chien-patent-trolls.html.

136

Joe Mullin, “New study suggests patent trolls really are killing startups,” Ars Technica, June 11, 2014, available at http://arstechnica.com/tech-policy/2014/06/new-study-suggests-patent-trolls-really-are-killing-startups/.

137

On September 15, 2012, a request was filed with the U.S Patent & Trademark office to re-examine Lennon’s patent. As of this writing, that request had not yet been acted on. Meanwhile, several of the cases in Delaware and Texas remained ongoing.

138

United State Patent and Trademark Office, Trademark, Patent, or Copyright, USPTO.gov (January 18, 2013) http://www.uspto.gov/trademarks/basics/definitions.jsp.

139

See Id.

140

See, e.g., In re E.I. du Pont de Nemours & Co., 476 F.2d 1357 (C.C.P.A. 1973).

141

2415 U.S.C. §§ 1051-1141n.

142

25Keiichi Matsuda, Augmented (hyper) Reality: Domestic Robocop, Youtube (January 6, 2010). http://www.youtube.com/watch?v=fSfKlCmYcLc.

143

See Steve Baird, Touch Trademarks and Tactile Brands With Mojo: Feeling the Strength of a Velvet, Turgid, Touch Mark?, Duets Blog (July 13, 2009) http://www.duetsblog.com/2009/07/articles/trade-marks/touch-trademarks-and-tactile-brands-with-mojo-feeling-the-strength-of-a-velvet-turgid-touch-mark/.

144

U.S. Trademark Application Serial No. 76,634,174 (Filed March 23, 2005) available at http:// tsdr.uspto.gov/-caseNumber=76634174&caseType=SERIAL_NO&s.

145

Response to Office Action, U.S. Trademark Application Serial No. 76,634,174 (April 17, 2006) available at http://tsdr.uspto.gov/documentviewer?caseId=sn76634174&docId=ROA2006041812151 4#docIndex=4&page=1

146

Report of the World Intellectual Property Organization, Standing Committee On The Law Of Trademarks, Industrial Designs And Geographical Indications, Sixteenth Session, Geneva, November 13 to 17, 2006 at 10-11 (2006).

147

Technically, as noted in Chapter 2, the ability to discern heat is distinct from the sense of touch. For simplicity’s sake, however, this book will follow the popular approach of treating them as the same.

148

See Google AdWords, http://www.google.com/adwords/learningcenter/text/18911.html (last visited March 23, 2009).

149

See, e.g., Storus Corp. v. AroaMktg., Civ. No. 06-2454-MMC; 2008 U.S. Dist. LEXIS 11698, at *12-13 (N.D. Cal. February 15, 2008) (finding infringement where defendant’s sponsored ad was triggered by and incorporated plaintiff’s trademarked “smart money clip”).

150

See, e.g., Edina Realty, Inc. v. Themlsonline.com, Civ. 04-4371JRTFLN; 2006 U.S. Dist. LEXIS 13775 (D. Minn. March 20, 2006) (finding liability where “Defendant purchases search terms that include the Edina Realty mark to generate its sponsored link advertisement”); Fin. Express LLC v. Nowcom Corp., 564 F. Supp. 2d 1160, 1177 (C.D. Cal. 2008) (holding that defendant’s purchase of keywords that “are identical or strikingly similar to the trademarks held by plaintiff” along with its offer of “services and products which are highly related to those offered by plaintiff’ and “simultaneous use of the Web as a marketing channel” may result in consumer confusion).

151

See, e.g., 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229 (10th Cir. 2013).

152

See Rosetta Stone LTD. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012)

153

Graham Charlton, 40% of Consumers are Unaware that Google Adwords are Adverts, Econsultancy Blog (February 28, 2013) http://econsultancy.com/blog/62249-40-of-consumers-are-unaware-that-google-adwords-are-adverts.

154

Jonathan McIntosh, Admented Reality, Youtube (April 5, 2012) http://www.youtube.com/watch?v=. mRF0rBXIeg&feature=kp.

155

John Havens, Who Owns the Advertising Space in an Augmented Reality World?, Mashable, (June

6, 2011) http://mashable.com/2011/06/06/virtual-air-rights-augmented-reality/

156

Id.

157

4°Id.

158

Rogers v. Grimaldi, 875 F. 2d 994, 998 (2d Cir. 1989).

159

See Brown v. Entertainment Merchants Ass’n, 1313 S.Ct. 2729 (2011).

Mark Skwarek’s “The Leak in Your Home Town” app.

Unauthorized augmentation of trademarks

For the first few years in which AR has been used in advertising, the technology required to create the experience has been more or less limited to corporations, agencies, and startups with substantial budgets, sophisticated software, and coding expertise. Even the first publicly accessible tools for creating user-generated AR contents have been slow to catch on, and required a significant learning curve. As this book nears completion during 2014, however, more user-friendly and robust creative tools are hitting the public market, democratizing AR even further. Before long, user-generated commentary is likely to be as ubiquitous in augmented form as video commentary currently is on YouTube.

When the subject matter of user-generated AR content relates to a particular brand, no object will be more tempting to serve as the trigger for that content than the very trademark that the brand owner uses to represent its goodwill to the public. Indeed, this has already happened at least once. In 2010, Professor Mark Skwarek (of the NYU Polytechnic School of Engineering and, most recently, the creative lead behind the Kickstarter-funded app PlayAR) released the iPhone app “The Leak in Your Home Town” (Fig. 5.8). Through this app, one could view a physical sign bearing the BP logo at a local gas station, and see superimposed on that logo a digital

160

See, e.g., Taubman Co. v. Webfeats, 319 F.3d 770, 777-78 (6th Cir. 2003) (no Lanham Act violation where gripe site with domain name taubmansucks.com that provided editorial on conflict between website creator and plaintiff corporation did not create any possibility of confusion); Taylor Bldg. Corp. of Am. v. Benfield, 507 F.Supp.2d 832, 847 (S.D.Ohio 2007) (gripe site with domain name taylorhomes-ripoff.com that served as forum for criticizing home builder did not create any likelihood of confusion “because [n]o one seeking Taylor’s website would think — even momentarily — that Taylor in fact sponsored a website that included the word ‘ripoff’ in its website address”); Bally Total Fitness Holding Corp. v. Faber, 29 F.Supp.2d 1161, 1163-64 (C.D.Cal.1998) (gripe site with domain name www. compupix.com/ballysucks dedicated to complaints about Bally’s health club did not create likelihood of confusion because no reasonable visitor to gripe site would assume it to come from same source or think it to be affiliated with, connected with, or sponsored by Bally’s); MCW, Inc. v. Badbusinessbureau.com, L.L.C., No. 02 Civ. 2727, 2004 WL 833595, at *16 (N.D.Tex. April 14, 2004) (Lanham Act unfair competition claims against consumer review websites called “ripoffreport.com” and “badbusinessbureau. com” that used plaintiff’s trademarks in connection with allegedly defamatory posts dismissed because no visitor to websites would believe that plaintiff markholder endorsed the comments on sites); Whitney Inf. Network, Inc. v. Xcentric Ventures, No. 2:04-cv-47-FtM-34SPC, 2005 WL 1677256 (M.D.Fla. July 14, 2005) (unpublished memorandum and order) (dismissing trademark infringement and false designation of origin claims against “ripoffreport.com” because plaintiff mark holder, a seller of education courses, was involved in different field than defendant, who sold advertising space on site and helped aggrieved consumers reclaim lost money, and because no consumer would “be confused by a consumer watch-dog type website that is not selling any real estate investment course”); Cintas Corp. v. Unite Here, 601 F.Supp.2d 571 (S.D.N.Y. 2009), aff’d 355 Fed.Appx. 508 (2d Cir. 2009) (per curiam) (rejecting assertion by Cintas that the website < cintasexposed.com>, run by a labor union and dedicated to criticizing the company’s labor practices, could cause customer confusion).

161

44Ascentive, LLCv. Opinion Corp., 842 F. Supp. 2d 450 (E.D.N.Y. 2011).

162

17 USC §102 (2012).

163

For example, “all portions of [a video game] program, once stored in memory devices anywhere in the game, are fixed in a tangible medium.” Stern Elecs., Inc. v. Kaufman, 669 F.2d 852, 855 n.4 (2d Cir. 1982).

164

17 USC §102 (2012).

165

Firesabre Consulting LLC v. Sheehy, No. 11-CV-4719 (CS), 2013 WL 4520977 (S.D.N.Y. September 26, 2013).

166

Id.

167

See Feist Pub’lns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991); 17 U.S.C. § 102 (2012).

168

Feist Pubs., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345-46 (1991)

169

Todd v. Montana Silversmiths, Inc., 379 F. Supp. 2d 1110, 1112 (D. Colo. 2005).

170

Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1903)

171

Feist, 499 U.S. at 345.

172

Meshwerks v. Toyota Motors Sales USA, Inc. 528 F. 3d 1258 (10th Cir. 2008).

173

Sparaco v. Lawler, Matusky, Skelly, Engineers LLP, 303 F.3d 460, 467 (2d Cir. 2002)

174

51 Id. at 467

175

ATC Distr. Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700, 712 (6th Cir. 2005).

176

Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.Supp.2d 191, 197 (S.D.N.Y. 1999)

177

60Durham Indus., Inc. v. Tomy Corp., 630 F.2d 905, 910 (2d Cir. 1980).

178

Entm’tResearch Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1221-24 (9th Cir. 1997).

179

62Meshwerks v. Toyota Motors Sales USA, Inc., 528 F. 3d 1258, 1269 (10th Cir. 2008).

180

Id. at 1269-70.

181

Julie Streitelmeier, AMC movie theater calls ‘federal agents’ to arrest a Google Glass user, The Gadgeteer (January 20, 2014) http://the-gadgeteer.com/2014/01/20/amc-movie-theater-calls-fbi-to-arrest-a-google-glass-user/.

182

Gaylord v. United States, 595 F. 3d 1364 (Fed. Cir. 2010).

183

Castle Rock Entm’t v. Carol Publ’g Grp., 150 F. 3d 132, 138 (2d Cir. 1998).

184

17 USC §101 (2012).

185

17 U.S.C. § 120 (2012).

186

Javelin Investments, LLC v McGinnis, CA H-05-3379, 2007 US Dist Lexis 21472 (S.D. Tex. January 23, 2007).

187

Id.

188

nGuillot-Vogt Associates, Inc. v. Holly & Smith, 848 F.Supp. 682 (E.D. La. 1994)

189

17 USC 106A (2012).

190

17 USC 107 (2012).

191

17 USC 107 (2012).

192

Cariou v. Prince, 714 F.3d 694 (2d Cir. April 25, 2013).

193

76A Read-Only Future, Youtube (March 16, 2013) https://www.youtube.com/watch?v=f8bDg2qewFA.

194

Mark Skwarek, Still Wearing a Real Mask this Halloween?, Polytechnic School of Engineering (October 28, 2013) https://engineering.nyu.edu/press-release/2013/10/28/still-wearing-real-mask-halloween.

Copyright owners could also license the right to make particular uses of augmented content. Today, for example, owners of musical works sell “sync” or “soundtrack” licenses to filmmakers, which convey the right to “sync” a particular song with video content into an audio-visual film. There is no logical reason why copyright owners could not likewise license the ability to sync their works with any physical object via the augmented medium. Want passersby to see a copyrighted dragon image on your arm (as in the foregoing example of the man with the tattoo of a Nintendo 3DS

195

Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090 (ND Cal. 2011) and Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (ND Cal. 2011).

196

Eagle v. Morgan, No. 11-4303. (E.D. Penn. 2013)

197

“Gait biometrics shows promise,” Homeland Security News Wire, September 8, 2011, available at http://www.homelandsecuritynewswire.com/gait-biometrics-shows-promise

198

Natalie Dylan, Why I’m Selling My Virginity, The Daily Beast (January 23, 2009) http://www.

thedailybeast.com/articles/2009/01/23/why-im-selling-my-virginity.html.

199

ld.

200

Id.

201

^Michaels v. Internet Entm’t Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998)

202

Lisa Prince, Keeping Up With The Kardashians: Kim Kardashian Reacts To Sex Toy Doll, Reality TV Magazine (September 22, 2010)http://realitytvmagazine.sheknows.com/2010/09/22/keeping-up-with-the-kardashians-kim-kardashian-reacts-to-sex-toy-doll/.

203

Bosley v. WildWett. Com, 310 F. Supp. 2d 914 (N.D. Ohio 2004).

204

'"Arnold v. Treadwell, No.2007-080617-CZ, 2009 WL 2136909 (Mich Ct. App. July 16, 2009) (unpublished opinion)

205

Id.

206

Arnold v. Treadwell, 642 F. Supp. 2d 723 (E.D. Mich. 2009).

207

Steven Levy, “Siri’s Inventors Are Building a Radical New AI That Does Anything You Ask,” Wired, August 12, 2014, available at http://www.wired.com/2014/08/viv/.

208

“Waze debuts new feature where celebrities give you driving directions,” VentureBeat, November 23, 2013, available at http://venturebeat.com/2013/11/23/waze-debuts-celebrity-voice-navigation-feature/.

209

White v. Samsung Elec. Am., Inc. 971 F. 2d 1395 (9th Cir. 1992).

210

49 U.S.C. § 40103(a)(1).

211

49 U.S.C. § 40103(a)(2).

212

Moreover, the tragic downing of a Malaysian Airlines jet over Donetsk, Ukraine - which occurred as this chapter was being finalized - is a stark reminder that not all groups share the same respect for common access to the skies.

213

214

Rutgers University - New Jersey Agricultural Experiment Station, What Is a Transfer of Development Rights (TDR) Program? Available at http://njaes.rutgers.edu/highlands/tdr.asp (last visited August 29, 2014).

215

The text of the amendment, as written in the eighteenth century, applies only to “Congress.” Subsequent interpretation by the courts and expansion of the right to due process of law by the Fourteenth Amendment, however, have made clear that this principle applies equally to state and local authorities as well.

216

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.).

217

A. Meiklejohn, Free Speech and Its Relation to Self-Government 15-16 (1948).

218

Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 62 (1974).

219

Elrod v. Burns, 427 U.S. 347, 360 (1976).

220

Brandenburg v. Ohio, 395 U.S. 444 (1969).

221

Rolfe Winkler, Google Predicts Ads in Odd Spots Like Thermostats, Wall Street Journal (May 21, 2014), available at http://blogs.wsj.com/digits/2014/05/21/google-predicts-ads-in-odd-spots-like-ther-mostats/ (last visited August 29, 2014).

222

John C. Havens, “Who Owns the Advertising Space in an Augmented Reality World?”, Mashable, June 6, 2011, available at http://mashable.com/2011/06/06/virtual-air-rights-augmented-reality/.

223

521 U.S. 844 (1997).

224

Tim Berners-Lee, Links and Law: Myths, W3C (April 1997), available at http://www.w3.org/Desig-nlssues/LinkMyths.html (last visited August 29, 2014)

225

For example, a federal court in Washington affirmed a student’s right under the First Amendment to criticize a teacher by posting a link to a YouTube video about the teacher. Requa v. Kent Sch. Dist. No. 415, 492 F. Supp. 2d 1272, 1283 (W.D. Wash. 2007); see also Universal City Studios, Inc. v. Corley, 273 F. 3d 429, 449-50 (2d Cir. 2001) (holding that “computer code conveying information is ‘speech’ within the meaning of the First Amendment,” but also that such speech may be regulated in a contentneutral manner by intellectual property laws, just like any other form of speech).

226

227

The Heavy Projects, heavy project, available at http://theheavyprojects.com/projects (last visited August 29, 2014).

A screenshot from the Heavy Projects’ Driskill Hotel Takeover.

building at relatively low expense - even (and perhaps especially) those that are otherwise nondescript and out of the way. The promise of “hidden” art could draw foot traffic to a location that translates into additional revenue for the business within.

Second, an artist working in AR has options that were never before available. He doesn’t need to worry that his work will be lost the next time someone else comes and paints over the wall. If the work is created and preserved digitally, it will remain available, as long as it is associated with the appropriate physical cues necessary to trigger the experience. What’s more, he has three-dimensional and perpetually moving elements at his disposal that cannot be achieved with mere paint. Several of the Heavy Project’s murals, for example, depict imagery floating in the air and pouring out of the augmented wall (Fig. 6.4).

Third, AR allows graffiti artists to mark up a wall to their hearts’ content without ever changing its physical appearance. Those who don’t wish to experience the imagery won’t ever need to see it. Those who do, however, may enter into one of several available digital experiences in the same location. In either event, unlike traditional graffiti, the art does nothing to impinge upon the property rights of those who own the physical surfaces.

Indeed, augmented graffiti could conceivably contribute to better preservation of physical walls because more people will have a stake in preserving them. Consider: as long as AR apps require a visually recognizable surface to trigger an augmented display (and that will be true for some time), then none of the AR artists whose content is visible on a particular wall will have their art seen if the wall becomes so altered that the AR app being used can no longer recognize it. In other words, one vandal can ruin the expectations of a limitless number of other street artists, not to mention the landowner. Therefore, each one of those stakeholders will have an interest in preventing undesirable physical graffiti on that wall. The more people who have that motivation, the less likely it will be that the wall gets physically “tagged.”

228

Andrew Burger, Nielsen: Despite Hundreds of Choices, Average Number of TV Channels Watched is 17, telecompetitor (May 9, 2014), available at http://www.telecompetitor.com/nielsen-average-num-ber-of-tv-channels-watched-is-17/ (last visited August 29, 2014).

229

Layar, Layar Vision FAQs, available at https://www.layar.com/documentation/browser/howtos/layar-vision-doc/layar-vision-faqs/#can-i-augment-several-parts-of-the-same-reference-image (last visited August 29, 2014)

230

15 U.S.C. §1125.

231

232

Saroi Kar, Google’s Ingress Platform Paves the Way for Other AR Games, Silicon Angle (December 20), available at http://siliconangle.com/blog/2013/12/30/googles-ingress-platform-paves-the-way-for-other-ar-games/ (last visited August 29, 2014)

233

234

See National Nanotechnology Institute website, available at http://nano.gov (last visited August 29, 2014).

235

“National Nanotechnology Institute, Environmental, Health, and Safety Issues, available at http:// www.nano.gov/you/environmental-health-safety (last visited August 29, 2014).

236

Peter E. Masaitis, Not Such a Small Thing: The Litigation Risks of Nanothechnology, Industry Week (September 18, 2009), available at http://www.industryweek.com/companies-amp-executives/not-such-small-thing-litigation-risks-nanotechnology (last visited August 29, 2014).

237

Ron Wernette, The Rise of Nanotech Litigation from the Winter 2010 Issue of the ABA Section of Litigation magazine, Litigation News - “The Rise of Nanotech Litigation,” Nanotort Law Blog (February 3, 2010), available at http://www.nanotortlaw.com/2010/02/03/the-rise-of-nanotech-litigation/ (last visited August 29, 2014).