Here’s the punchline: if you play Pokémon GO, then, within thirty (30) days of downloading it, you need to send an email to firstname.lastname@example.org with the subject “Arbitration Opt-out Notice” in which you specifically say that you are keeping the right to litigate any dispute with Niantic, Nintendo, and any other party relating in any way Pokémon GO.
Got it? Good. Let’s talk about why.
Pokemon Go was released on July 5th, and since then it has taken the Internet by storm; it’s already more popular than Tinder and, by the end of the week, should have more users than Twitter. It’s a brilliant idea and a ton of fun. Unfortunately, when people start wandering around with their heads in their smartphones, they end up getting hurt, exposing themselves to crime, and finding dead bodies.
That raises a host of legal issues that our courts are just beginning to hash out, like with the Match.com murder lawsuit and the Google Maps pedestrian accident case. If a Pokemon Go user is injured, or attacked, or lulled into trespassing, could there be liability? I don’t know. Nobody does. We can speculate generally about the liability of companies that provide augmented reality, but the actual answers have to wait for court cases with specific facts.
ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND NIANTIC WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You and Niantic agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (a) to bring an individual action in small claims court and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in this clause (b), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Niantic with written notice of your desire to do so by email or regular mail at email@example.com or 2 Bryant St., Ste. 220, San Francisco, CA 94105 within thirty (30) days following the date you first accept these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Niantic with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (a) and (b) above.
Maybe you’re thinking, “only an idiot would get hurt playing Pokemon Go” or “these frivolous lawsuits are destroying America.” That’s fine. We can discuss that later. Right now, the question is: are you so sure about that you want to forever waive your right to use the court system?
Maybe you are. That’s fine. But bear in mind you’re not just waiving the right to sue over injuries, you’re also waiving the right to participate in class actions brought by others. If Pokemon Go has all of your personal information stolen by hackers, and there’s a class action, you’re out of luck. If Pokemon Go systematically cheats you on in-app purchases, and there’s a class action, you’re out of luck. Your only remedy is in “individual arbitration.” Obviously Niantic and Nintendo think there’s a risk of them being sued and being held responsible for something, which is why they’ve put the Charizard of arbitration in front of you.