Augmented Reality goes to trial, wins (for now…)

David Kravets, writing for Ars Technica:

A judge on Thursday declared as unconstitutional a local Wisconsin ordinance mandating that the makers of augmented reality games get special use permits if their mobile apps were to be played in county parks. The law—the nation’s first of its kind—was challenged on First Amendment grounds amid concerns it amounted to a prior restraint of a game maker’s speech. What’s more, the law was seemingly impossible to comply with.

The federal lawsuit was brought by a Southern California company named Candy Lab. The maker of Texas Rope ‘Em—an augmented reality game with features like Pokemon Go—sued Milwaukee County after it adopted an AR ordinance in February in the wake of the Pokemon Gocraze. Because some of its parks were overrun by a deluge of players, the county began requiring AR makers to get a permit before their apps could be used in county parks.

The permitting process also demanded that developers perform the impossible: estimate crowd size, event dates, and the times when mobile gamers would be playing inside county parks. The permits, which cost as much as $1,000, also required that developers describe plans for garbage collection, bathroom use, on-site security, and medical services. Without meeting those requirements, augmented reality publishers would be in violation of the ordinance if they published games that included playtime in Milwaukee County parks.

Central to its position, Milwaukee County tried to argue that Augmented Reality apps were not protected by the First Amendment. Why?

Because according to the county, the game “does not convey any messages or ideas. Unlike books, movies, music, plays and video games—mediums of expression that typically enjoy First Amendment protection—Texas Rope ‘Em has no plot, no storylines, no characters, and no dialogue. All it conveys is a random display of cards and a map.”

This is a preliminary injunction, and ultimately the matter will be determined in trial, currently not calendared until April of next year.

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