5 Predictions for Augmented Reality Law in 2013 (and a Look Back at 2012)

As a public radio commentator once said, augmented reality has “been the Next Big Thing for a while now, although it never manages to become the Actual Current Big Thing.”  In keeping with this Sisyphean observation, we did not (yet) see quite as much development in either AR technology or the law governing its use in 2012 as I had predicted at this time last year.

220px-Nostradamus_by_CesarBut no matter.  The advance of AR technology is gradual but inexorable.  We’ve envisioned its potential in popular culture for decades now, and it’s difficult to be patient while the hardware plays catch-up to our imaginations.  Yet it is coming, and 2013 could yet be a year of unprecedented breakthroughs.  For example, this may (or may not) be the year that we see at least one company (probably Google) introduce a pair of AR glasses for the mass market.  Although the first device will almost certainly be primitive and highly limited, it will open the minds of the general public to this new class of devices just as the first cell phones did over 20 years ago.  And once that happens, the pace of innovation–and of related legal disputes–will be quick.  (Evernote CEO Phil Libin recently predicted that, only three years from now, devices like Google Glass will be so common that it will seem “barbaric” not to wear them.)

Before looking ahead at what we might see in 2013, let’s briefly recap my predictions for 2012:

1.  The First Licensing Model for AR.  “Sometime in 2012,” I wrote, “I expect to see at least one company monetize AR content–perhaps through an in-app purchasing feature, allowing users to download custom images that they could then see through their smartphones.”  If there is such a model right now, I haven’t seen it–at least, not in the way I envisioned.  There are plenty of free apps that let you overlay digital images on your photos, such as Goldrun or the Wal-Mart Avengers app.  But these are free, not the ” downloadable AR skins for Siri” type of business model that I had in mind.  Score: 0.

2.  The First Negligence Lawsuit.  With all this overlaying of digital content over physical reality happening, I predicted that someone would fall and hurt themselves as a result.  To my knowledge, that hasn’t happened yet.  But someone did recently manage to get themselves detained by the police while playing the AR game Ingress, because his odd behavior with his cell phone in front of a police station looked a little too suspicious.  This is a similar issue that I’ve often predicted in my public speeches alongside my discussion of personal injury.  So I’m going to give myself half credit on this one.  Score: 1/2.

3.  The First AR Patent Fight.  This one happened in spades.  True, I thought that the first AR patent suit would pertain to eyewear, but I also noted that “it might not happen exactly that way.”  Instead, it was a half-dozen lawsuits filed in the federal district court in Delaware, alleging that various “online dressing room”-type sites infringed the plaintiff’s patent.  Among the defendants is Mattel, whose Barbie Dream Closet site used Zugara’s social shopper technology–which itself was granted patent protection this year.  I have repeatedly sounded the alarm that a new wave of patent litigation is coming from the AR industry, and these developments have vindicated those predictions.  Score: 1.

4. & 5.  The First Trademark Opposition and Public Resistance to AR Porn.  Neither of these developments played out as I expected during 2012.  By no means does that suggest that they won’t happen.  As an attorney practicing IP and media law, including for clients in the AR industry, I can say with first-hand knowledge that AR companies are protecting their trademarks.  But I have not yet seen this result in an trademark opposition proceeding.  Likewise, if you could see the reports I get on the Google searches that lead people to my site, you’d know that there’s an ever-present demand out there for augmented adult content.  But because the technology has not yet entered the public consciousness to the degree I expected, family and law enforcement groups have not yet raised opposition to this development.  Score: 0.

So I end up with a score of 1.5 out of 5.  Nostradamus, I’m not.  But I maintain that the disconnect here is not in the substance of my predictions, but in the timing.  These developments are coming, as soon as the technology matures just a little bit more.

With that in mind, here are my predictions for how AR law will evolve in 2013:

1. Privacy Disputes.  With all the privacy wars that are already underway in other digital media, this may be a bit like predicting the sun will rise tomorrow.  But privacy will be a critical component of the debate that society has as it grows accustomed to AR technology.  And the issue will manifest in a variety of ways–some of which are unique to the AR medium, and some that are common across the internet:

  • Privacy watchers have already flagged Google’s Ingress multi-player AR game as “a data gold mine” that will offer the search giant new avenues for collecting information from the physical world.
  • As AR smartphone apps become more popular, the potential for gathering information from children in violation of the Child Online Privacy Protection Act (COPPA) increases as well.
  • The same will be true of AR eyewear, which for the first time will allow service providers to track users’ eye movements.
  • Eyewear will also double as ubiquitous video recorders, which opens all sorts of obvious paths to invading the privacy of others.
  • Social media software on advanced AR eyewear will rely on facial recognition to identify our friends, which will certainly spook privacy advocates and regulators.
  • The “convergence” of data in augmented space will be perceived as invading privacy in some circumstances.  For example, financial and other personal records about us exist in various databases strewn across the internet, many of which are publicly accessible.  But when an AR app enables someone to view all that information collected in one place and made to float over our heads, it will feel much more intrusive.

By no means am I predicting that all of these privacy arguments will be made in 2013.  But I do believer that at least one, and perhaps several, will get attention in either the courts or the press as AR technology becomes more pervasive.

2.  Deceptive & Misleading Marketing.  We’ve already seen, in late 2011, a consumer watchdog group bring formal legal action in response to AR marketing.  In that case, Pepsico and Frito-Lay used AR to promote Doritos.  A group of watchdogs produced a study asserting that this type of marketing deceptively manipulated teenagers into consuming junk food, and filed a complaint with the FTC.  We haven’t heard much on that specific case since then.  But AR marketing–and discussion of its legal ramifications–has continued to expand.  And wherever there is innovation, accusations will always follow.  We can expect another dispute over AR marketing in 2013.

3.  Personal Injury.  I’m sticking to my guns on this one.  Someone is going to hurt themselves this year, and blame AR for it.

4.  Publicity Rights.  I write a lot (and have litigated a fair number of cases) concerning publicity rights–the right of an individual to control the commercial exploitation of their identity.  We’ve already seen AR used to recreate celebrities, including concerts by holograms of deceased performers Tupac Shakur and Freddie Mercury.  And we can expect social media applications to be just as popular in AR as they are in other internet-enabled media.  All of that emphasis on individuals has already brought with it new concerns about publicity rights.  Expect to see a right of publicity dispute in augmented media sometime this year.

5.  Trademark Disputes.  I won’t limit this year’s prediction to a trademark Opposition proceeding like I did last year.  But I continue to believe that we’ll see friction between two parties concerning the way trademarks are used in augmented space.  It could be something as simple as two confusingly similar names for different smartphone apps.  It might involve digital replacement of physical ads, a current trend that is picking up speed and guaranteed to annoy the owners of those  physical displays.  Or it could be as nuanced as the physical analog of “keyword advertising” that I wrote about last year–when AR apps are programmed to recognize physical ads, objects, or even people and use them as triggers for digital content.

 And 6th …  Expect an updated and expanded version of Augmented Legality 1.0, the ebook that I released last year.  Look for it before this year’s Augmented World Expo, taking place in Santa Clara, California on June 4-5, 2013.