Property Rights in Augmented Reality

Abstract

Increasingly, cities, towns, and even rural communities are being slowly reshaped by a dynamic yet initially imperceptible phenomenon: the elaboration of augmented reality. Through applications that place virtual features over specific, real-world locations, layers of augmented reality are proliferating, adding new elements to an increasingly wide range of places. However, while many welcome the sudden appearance of arenas for battling digital creatures in their neighborhood or the chance to write virtual messages on their neighbor’s wall, the areas being augmented oftentimes are privately owned, thereby implicating property rights. Many intrusions, of course, are de minimis: an isolated, invisible Pikachu unexpectedly appearing over the GPS coordinates corresponding with one’s home can hardly be labeled a tragedy. Nevertheless, other infringements—such as the inundation of a church’s facade with offensive digital messages or the establishment of a virtual center of commerce in one’s backyard—seem to demand a solution. To date, however, commentators, courts, and litigants have almost universally assumed that property law does not and cannot provide recourse for such intangible invasions. Resisting such expectations, this Essay will argue that not only can property law play a role in augmented reality, but that its application in this context leads naturally to a regime that protects real property owners’ interest in the digital space linked to their property. In the process of so doing, this Essay will illuminate how recognizing real property owners’ right to control relevant parcels of site-specific augmented reality does not mark a novel expansion of property law but accords—and in many ways is dictated by—existing theory and precedent. The project is divided into four parts. Part I provides an overview of augmented reality and its myriad applications, highlighting in the process the concerns many of these applications raise for real property owners. Part II then dissects a number of different property law theories and illustrates how rights to augmented reality—specifically rights inhering in the owner of the corresponding parcel of land—fit comfortably into each one. Finally, Part III analyzes case law supporting the recognition of this new property interest, focusing in particular on the ancient ad coelum and much more recent cyberproperty lines of cases. Part IV offers a brief conclusion.