Milwaukee County Required Augmented-Reality Game Publishers to Apply for Park Event Permits After Pokémon Go Crowds Overran Lake Park. The Law Was Undone by a Cowboy-Themed Poker App and Cost $83,000 in Legal Fees.
In July 2016, Pokémon Go was released, and Lake Park, a public park on Milwaukee's East Side, turned out to be full of places the game told people to visit. Hundreds of players arrived, and sometimes thousands, at all hours. According to the Associated Press, the result was traffic congestion, overtime for sheriff's deputies, overflowing bathrooms and enough litter that the county had minimum-security inmates help clean it up. Neighbours reported trampled grass and flowers, people in the park after closing, unauthorised vendors and parking violations. One resident told WUWM that about 35 people had gathered in front of their house at once.
The players had a different account. At a public meeting called that September, one said she had lost 15 pounds since she started playing. Another said he had met some of his closest friends in the park. County Supervisor Sheldon Wasserman, whose district includes Lake Park, described the period to the AP as months "of basically absolute hell."
The Letter
In August 2016, County Executive Chris Abele and Parks Director John Dargle wrote to Niantic, the game's developer. The letter noted that "the Pokemon phenomenon has introduced hundreds, if not thousands, of individuals to our park system," listed the consequences, including compacted turf, litter and people ignoring park hours, and told Niantic to remove its PokéStops from county parks until it had applied under the county's existing guidelines for virtual geocaches.
It worked, more or less. By late October 2016, Niantic had worked with the parks department to remove the PokéStops at several of the worst locations, including those on Wahl Avenue, a narrow residential street where players had been double-parking. More than a dozen stops remained elsewhere in the park.
The Ordinance
On 2 February 2017, four months after the stops came down, the County Board voted 13 to 4 to adopt Wasserman's ordinance. It stated that "location-based augmented reality games are not permitted in Milwaukee County Parks" except in areas covered by a permit, and that every company introducing such a game would need one, "effective January 1, 2017." The ordinance was published and took effect on 20 February, which made the permit requirement seven weeks retroactive.
The permit was the county's standard special-event application, which runs to ten pages. It asked for estimated attendance, event dates and times, a site map, advertising plans, and detailed arrangements for garbage collection, on-site security and medical services, plus liability insurance. Fees reported in court coverage included a $500 hotline fee, garbage collection at $50 per employee per hour, and picnic tables at $15 a day. The application also warned that the parks department "in its sole discretion may grant, deny, revoke, or suspend any permit, at any time and for any reason." Violations carried fines of $10 to $200.
According to the federal court's later summary, several supervisors had argued during the debate that the gamers were not causing disturbances. Wasserman, the court noted, believed the ordinance could help the county make money from the game's popularity.
The Poker Game
Niantic declined to comment. The company that eventually took the county to court was Candy Lab, which announced "Texas Rope 'Em" in March 2017. In the game, players walk to real-world locations to collect playing cards with an animated lasso, then play the hand against a dealer. In late March, Candy Lab's chief executive asked the county whether he needed a special-event permit to release it. A county events coordinator told him to fill in the application and attach a map of every place he wanted to put a virtual stop. Candy Lab sued in April instead.
The county's defence was that the game was not speech. In its filings it argued that Texas Rope 'Em had "no plot, no storylines, no characters, and no dialogue," and it also argued that the game was an illegal lottery. The game was free and offered no prizes of monetary value.
The Ruling
On 20 July 2017, U.S. District Judge J.P. Stadtmueller blocked enforcement of the ordinance. On the question of expression, he wrote that if disgust was not a valid reason to restrict speech, "certainly the suggestion that Texas Rope 'Em is boring cannot be." On the ordinance's review criteria, he asked "how much flower-trampling is too much," and then, of the "personal safety" standard: "Whose personal safety? How severe must the danger be?"
The ordinance, he concluded, "is revealed for its strangeness and lack of sophistication." It treated a phone game as an event with a start time, a site map and a garbage plan. As less restrictive alternatives, he suggested penalising gamers who broke park rules or limiting them to certain areas of the park. Before the ruling, the county had asked the court to pause the case while it considered amending the ordinance.
The Settlement
On 14 December 2017, the County Board approved a settlement. The county consented to a permanent injunction and agreed to pay Candy Lab $83,000 in attorneys' fees, which its insurance covered. Corporation Counsel Margaret Daun said that "profit-making businesses cannot simply hijack our parks," and that her office was drafting a revised ordinance that would be "much more difficult to attack." Supervisor Eddie Cullen, who had voted against the original, called it "kind of a 'Ha-ha, I-told-you-so' moment."
So the county asked Niantic to move its PokéStops, and Niantic moved several of them. The county then legislated for every other augmented-reality publisher that might ever exist, requiring garbage plans and insurance certificates for games that had not yet been released. Its insurer paid $83,000 in legal fees over a cowboy poker game.
Filed from public reporting:
- U.S. District Court, Eastern District of Wisconsin — "Candy Lab Inc. v. Milwaukee County, Case No. 17-CV-569-JPS, Order (July 20, 2017)"
- CBS Minnesota / Associated Press — "Milwaukee Now Requires Permits For 'Pokémon GO' In Parks"
- WUWM 89.7 FM — "Lake Park Neighbors Want to Put a Stop to Pokémon Go"
- Patch — "Milwaukee County Trying to Shut Down Pokemon GO At All County Parks"
- Media Milwaukee — "Pokemon Go? Or Pokemon Go Away?"
- Reason — "Milwaukee County Sued For Requiring 10 Page Permit Application to Play Pokemon Go in Public Park"
- WLUK / Associated Press — "Milwaukee County settles suit over augmented-reality games"
- Courthouse News Service — "Milwaukee Must Pay App Maker's Legal Fees"
