Gaming has been one of the most popular media for decades, and it’s only getting more popular. The industry revolves around games, and companies have taken advantage of this fact to make money. But, everything has always been a bit questionable.

If you’ve ever played a video game in the past few years, you’ve probably heard about virtual and augmented reality (VR/AR) tech. But what does this mean to video game developers?

Since the rise of new gaming technology, such as VR and AR, video games have become more interactive. Sit down with your friends and experience a more immersive gaming experience. In the past, you were just a player, but now you can become a creator. Content creation is now within reach for everyone. With more developers from both VR and AR companies showing up at GDC, the question is, how much liability does content creators have when it comes to the online interactions that happen in game?

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One of the things I like about a good GDC talk is when developers bring up problems that many of us have an uneasy feeling about and demonstrate how correct or incorrect we are. David Hoppe of Managing Partner Gamma Law brought up some topics near and dear to my heart during a session at this year’s GDC 2021: recent judgments concerning augmented reality (AR) and virtual reality (VR) – XR for short.

While I’ll defer much of the hard work to MOP’s Andy and our Lawful Neutral column, as MOP’s resident AR/VR expert, I figured I could at least contribute to the conversation, particularly considering how often I’ve voiced worry about XR practices. Many of the issues raised by users surfaced towards the end of 2019 when Kotaku discovered Niantic monitoring players’ whereabouts up to three times per minute, possible calories expended, and promotions they participated in, even when Niantic applications weren’t operating. We’re here to provide a trail of “told you so” for players and professionals who have that funny feeling about recent rumblings in AR/VR. MMO developer Raph Koster has long raised the alarm on issues like this, so we’re here to once again provide a trail of “told you so” for players and professionals who have that funny feeling about recent rumblings in AR/VR.

Many individuals are unhappy that Facebook is pushing itself on Oculus users, since they are concerned about how the data they are yoinking will be utilized. While there was no mention of large corporate safeguards throughout the discussion, Hoppe did point out that there may be precedent when it comes to safeguarding your own virtual data. The Supreme Court, for example, decided against police utilizing thermal imaging to search a person’s home for marijuana growing heat lamps without a warrant in Kyllo vs. United States. The notion was that the technology isn’t widely used in the general population, and what it senses isn’t readily visible in a physical sense. Because technologies like biometrics may be similarly intrusive information and isn’t commonly used, Hoppe argues that the authorities should require a warrant to access any biodata that unscrupulous businesses may have – which might include certain video game data.

Hoppe brought up the recent case of Lemmon vs. Snapchat (Snapchat), in which Snapchat is accused of encouraging users to speed in their cars, resulting in the deaths of three people. After the Ninth Circuit Appeals Court recently overturned an earlier judgment, the courts are now attempting to hold Snap responsible. While the case is still pending, the simple version is that developing anything, such as a filer/overlay, and offering incentives to utilize it does not meet the criteria for Section 230 of the Communications Decency Act’s safeguards. The court points out that “Snap undeniably created Snapchat’s incentive system and Speed Filter,” and that it misinterpreted “the meaning of [the court’s] remark in Dyroff that a website’s ‘tools intended to promote the communication and content of others’ were ‘not content in and of themselves.’” The filter wasn’t necessary for communication, which puts Snap more in the position of a product creator, according to Hoppe.

This instantly reminded me of Niantic and their many legal problems with Pokemon Go. Niantic, like Snap, isn’t exactly in the business of facilitating conversation, particularly given its main games still lack functional chat systems. It’s also developed a system of rewards that may encourage gamers to violate the law (and did). The game’s creators even request that users not only contribute places of interest, but also record the surrounding region for development reasons that they do not fully reveal. “Potentially both the AR business and the person would be susceptible to liability,” Hoppe replied when I questioned whether players or corporations might be held responsible for something they weren’t aware of. Because the person in this instance is not an employee, he or she would be solely responsible for his or her actions, and the business might be sued for promoting or aiding the actions.”

So, although Niantic may be receiving a lot of free labor from players, if someone really tried, both it and the user might end themselves in hot water, despite End User License Agreements. Again, the case of Lemmon vs. Snap is continuing, but Niantic is not a communications company/platform, but it incentivizes gaming that has already run afoul of the law. As much as I love AR and VR, businesses should think about their customers’ safety and create content that avoids apparent design flaws, particularly if they’ve previously created comparable games in which players have perished.

Andrew Ross of MOP is covering GDC’s summer digital event in 2021! More of his reporting may be found here:

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The Game Developers Conference (GDC) is a worldwide conference for game developers where many of the world’s leading video game developers and publishers gather to present their latest news and preview their upcoming products and technologies. The conference is held annually in San Francisco, California, United States. The Game Developers Conference (GDC) is organized by the Game Developers Conference, LLC (GDC), a non-profit trade association dedicated to advancing and supporting the growth of the interactive entertainment industry through a global network of professionals. The conference attracts thousands of attendees from a variety of professions, including producers, programmers, artists, game designers, business analysts, and others.. Read more about game development competition 2021 and let us know what you think.

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