AR Property Rights?

June 25, 2018

About a 6 min. read

Fiona McEvoy summarized some interesting viewpoints and issues related to permission, copyright, and AR augmentations in the real world, in a Slate article titled “What Are Your Augmented Reality Property Rights?”.A friend forwarded this to me a few weeks back, but I was on vacation and am only now returning to it.

These questions get raised a lot by people on all sides of the issue. Some people take extreme positions (“it’s all virtual and free speech dictates you have no control over what I see” to “virtually augmenting something is exactly the same as painting or building the same content in the physical world, so property rules and rights apply”), while others try to find a middle ground that respects free speech while also charting a path toward control of how we are perceived in the world.

I think both the extremes, and many of the attempts at navigating a middle ground, miss the point. Property owners want protection (from a home owner wanting to control how their personal property is perceived, to a theme park operator worried about their IP) so that images of their physical reality combined with distasteful virtual content are not created and shared.

But, people can already take picture, mark them up and share them, without AR. There are (social and legal) rules governing what’s allowed (from fair use, to libel, to copyright). Perhaps these same rules apply? Zillow sued McMansion Hell about their use of images on the site, and lost because the use of the images was deemed fair use (parody and satire), for exampleThe site now puts this at the bottom of each post: “Copyright Disclaimer: All photographs are used in this post under fair use for the purposes of education, satire, and parody, consistent with 17 USC §107. Manipulated photos are considered derivative work and are Copyright © 2018 McMansion Hell. Please email kate@mcmansionhell.com before using these images on another site. (am v chill about this) . Should an AR version of McMansion Hell be similarly legal? Or blocked? You can bet the owners of those homes wouldn’t be thrilled about people standing on the street in front of their McMansions looking at their homes if they knew they were annotated this way.

At the other extreme, creators and many individuals think it’s absurd that someone can’t run an application on their personal device that changes the appearance of what they see, perhaps adding funny glasses or mustaches to everybody’s face.

Complicating all of this is that what is considered “reasonable” (and legal) varies from country to country, so having this discussion in the absence of a specific jurisdiction is difficult.

Some of these discussions were triggered by Pokemon Go incidents, where people were frustrated at players engaging in the game on private property, or in inappropriate places like memorials or churches. But the issue here isn’t really the little Pokemon augmentations, it’s player behavior. If a group of strangers decided to have a party in your backyard, or juggle flaming torches in your church during services, you’d be equally bothered. The use of AR (or not) isn’t really the issue.

To me, there are two very different situations: push vs pull.

Content Pushed to You

If AR glasses have a content feed that is seen by all users by default, as the base stream of data, the argument that this is akin to “putting the content out in the physical world” begins to carry some weight for me. At the extreme, when everyone is “wearing”, and everyone sees the same virtual graffiti on your house with no explicit action on their part to retrieve and display the content, perhaps you should have some say in what is displayed on your property.

If all of the content from McMansion Hell was superimposed on everyone’s view of the houses in the articles, it starts to become akin to posting the commentary on a banner or billboard in front of these houses. This feels very different to me than posting it on a website (not least of all because McMansion Hell doesn’t post the addresses of the houses on their site, even though a little searching on Zillow in the town in question could likely uncover the location).

By way of analogy, consider Google (and Apple, MapQuest and Microsoft) Maps. If someone put a fake business, or point of interest, on my house that I didn’t agree with, I should have a reasonable expectation that I could request to have it taken down.

Content Pulled by You

In contrast, consider applications and websites that must be downloaded or visited by an individual to augment their view of your property with virtual content.

This seems different.

In that case, an individual has chosen to augment their view of the world with a certain kind of content, and if that content isn’t otherwise illegal, who’s to say they can’t view it? If someone chooses to give everyone beards, hide all detected advertisements (from billboards to t-shirts and hats) or add social commentary to the detected faces or yard signs of political figures, that should be their business.

The question of user choice and explicit action carries a lot of weight for me.

As the Saying Goes, “I’m no Lawyer…”

I’m not claiming these arguments are based on any particular legal framework or precedents, or are watertight under any legal jurisdiction. Rather, these are based on my views of fair use, privacy and free speech.

I’ve read some legal views on these issues (the Slate article references a few of them), and haven’t found any particularly compelling arguments that cover all AR without distinguishing between these two situations.

I’d love to hear what others think about all this, it’s going to be a big topic in the coming years.

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AR Property Rights? - June 25, 2018 - Blair MacIntyre