Augmented Reality Law, Privacy, and Ethics

Augmented Reality Law, Privacy, and Ethics

Law, Society, and Emerging AR Technologies

Brian D. Wassom

Allison Bishop, Technical Editor

AMSTERDAM • BOSTON • HEIDELBERG LONDON • NEW YORK • OXFORD PARIS • SAN DIEGO • SAN FRANCISCO SINGAPORE • SYDNEY • TOKYO Syngress is an Imprint of Elsevier

SYNGRESS.

To the two mentors who had the most meaningful influence on the first 15 years of my professional career. The Honorable Alice M. Batchelder personifies integrity and excellence, and taught me to respect the legal system. Herschel P. Fink, Esq. taught me to love the law I practice, and to practice the law I love. Both gave me amazing opportunities to serve in ways that fundamentally shaped my career. I hope to pay forward to others all that I can never repay to them.

Endorsements

“Any techie that follows Augmented Reality knows that AR continues to surge under Moore’s law. Brian Wassom is the indisputable, top legal expert in the realm of Augmented Reality. His perspective and legal lens continues to focus on AR and its journey to revolutionize technology. This book is a must read for any person looking to delve into the augmented world and absorb the rapidly changing legal and ethical landscape of cutting-edge high technology and its influence on society. This book is an unmatched AR resource that yields a powerful comprehension of an evolving mass medium.”

-Joseph Rampolla - Cyber-crime expert/Augmented Reality Dirt Podcast cre-ator/Co-author of Augmented Reality: An Emerging Technologies Guide to AR book

“Brian D. Wassom is my go-to resource on anything having to do with how Augmented Reality and emerging technology relates to legal issues. His writing is clear, impactful, and highly accessible regarding complex legal and technical issues. His book Augmented Reality Law, Privacy, and Ethics provides compelling evidence as to why Augmented Reality will drastically change culture over the next few years and how people need to prepare for what lies ahead. Brian’s wisdom, humor, and insights make Augmented Reality Law, Privacy, and Ethics a pleasure to read, and a must-have resource for anyone wishing to understand how our vision of the future will be perceived through the lens of Augmented Reality.”

-John C. Havens, Contributing writer for Mashable, Slate, and author of Hacking H(app)iness - Why Our Personal Data Counts and How Tracking it Can Change the World.

“We’re at the precipice of the next, visual era, with smart glasses that will forever change how we look at the world. More than just a comprehensive look at the related legal, social, and ethical issues, this book will get you thinking about the full impact of what’s to come.”

-Dave Lorenzini, CEO of Arc

“As the mass-media industries adapt to the newest mass medium, Augmented Reality, the combined abilities of digital, mobile, social, and virtual, all produce a quagmire of challenges and threats - as well as opportunities. Brian’s groundbreaking book is an invaluable guide to the treacherous ground that media owners, content creators, talent, news organizations, and others will face as they rush to stake their claims in the AR world. A must-read and invaluable resource for the next ten years.”

-Tomi T. Ahonen, author of 12 books including “Mobile as 7th of the Mass Media.”

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Endorsements

“Brian Wassom is the world’s leading expert on augmented reality (AR) law. Was-som’s research pioneered the field of AR law and currently defines the way it is understood by developers. His writing points out the heart of the salient issues facing the rapidly growing field of AR. Wassom’s texts are required reading for my Mobile AR graduate course at NYU.”

- Mark Skwarek, a full-time faculty member at New York University (NYU) and the director of the Mobile AR Lab at NYU.

“Brian Wassom brilliantly illuminates some of the tricky issues of privacy, law, and ethics that will determine whether Augmented Reality results in an enhanced or degraded future for humanity.”

-Tish Shute, Head of Product Experience at Syntertainment and cofounder and chief content officer of Augmented World Expo.

“Wassom thoroughly highlights most of the key issues facing AR today while establishing a clear path for analysis in the future. From advertising, to smart cars, to the augmented criminal organisations of the future, Augmented Reality Law, Privacy, and Ethics is must read for anyone looking to become deeply involved in AR over the next decade.”

-Brendan Scully, Senior Business Development Manager, Metaio, Inc.

Author Biography

Brian D. Wassom litigates disputes and counsels clients from Fortune 50 companies to startups concerning copyright, trademark, publicity rights, privacy, and related intellectual property and advertising issues. He is a partner in the law firm of Honigman Miller Schwartz and Cohn LLP, and chairs the firm’s Social, Mobile and Emerging Media Practice Group. Brian authors a popular blog on emerging media at Wassom. com that features the section Augmented Legality®, the first regular publication devoted to the law governing augmented reality. Brian presents regularly to industry groups, legal education seminars, and conferences across the country on intellectual property, digital media, and related topics.

Technical Editor Biography

Allison Bishop is a highly experienced criminal reviewer with 10 years experience reviewing cases, criminal research, and criminal activity. Allison also works as a paralegal performing tasks such as briefing cases and reviewing case law and the working within the legal process. As an editor, Allison enjoys reviewing and editing works based on criminal justice, legal studies, security topics, and cybercrime. When Allison is not entrenched in studies, she loves to exercise, cook, and travel.

CHAPTER

What is “Augmented Reality Law,” and Why

Should I Care?

INFORMATION IN THIS CHAPTER:

• • The “horizontal” nature of studying augmented reality law

• •  The inevitability of augmented reality technology

• • The economic significance of augmented reality technology

WHAT IS “AUGMENTED REALITY LAW”?

One of the joys of writing the first book on a topic is having the freedom to frame the discussion however seems best to me. The topics of discussion in the following chapters are the ones that I find the most important to explore based on my own experience practicing law and spending time with members of the augmented reality (or “AR”) industry.

But there are also downsides to a project like this. Among those is the need to justify the book’s existence before convincing anyone to read it. In the case of AR law, I am often required to explain to listeners what “AR” even is before I can broach the subject of why the law governing it is distinct and significant enough to require its own book.

That is the function of this chapter and the next. Here, I will attempt to persuade you that the AR industry is one to take seriously, and that it will be important to understand (and to help shape) the law governing the use of AR technology. Assuming that you remain sufficiently open to these conclusions to follow me to Chapter 2, I will explain in greater detail the nature of AR and its related technologies. From that foundation, the rest of the book will survey a number of different legal and ethical topics that are likely to be, or are already being, implicated by AR.

I hope you will stick with me to the end, and agree that it was worth the ride.

A HORIZONTAL STUDY

If you are a student, then you are likely accustomed to studying one concept - such as contract law, chemistry, or grammar - at a time. Even in professional settings, individuals and entire companies often find themselves, consciously or unconsciously, thinking and operating within defined tasks, categories, or industrial segments, to the

Augmented Reality Law, Privacy, and Ethics

Copyright © 2015 Elsevier Inc. All rights reserved. exclusion of all other subjects. We frequently refer to these areas of concentration as “silos” or “verticals,” implying that the people inside them may build up quite a bit of knowledge of, or experience in, the given topic, but have relatively little idea how that topic relates to anything else. For example, an automotive engineer may spend years, even an entire career, immersed in the inner workings of a particular subsystem of a car, with no understanding or concern as to how that subsystem relates to or affects the rest of the vehicle. Similarly, many legal and medical professionals develop highly specialized (and expensive) skills in a niche practice area, but would not have the first clue how to help a random client who walks in off the street with a basic, everyday problem.

This is not such a study. “Instead of a deep ‘vertical’ look at one legal doctrine, this [book] will survey several disparate topics ‘horizontally.’1 In the current professional vernacular, it cuts across several verticals. Put another way, this book takes as its starting point one particular industry - the companies and innovators developing AR and related technologies - and surveys the various legal issues that members of that industry are likely to encounter. This approach has the advantage of being enormously more useful for the members of that industry and the professionals (like me) who would serve them, but it can be a bit disorienting (at least at first) for students accustomed to more abstract analysis.

That is not to say, by any means, that vertical studies of legal principles do not have their place in academia, or that students should avoid reading a book like this one. To the contrary, courses in basic legal doctrines provide the building blocks necessary for applying the law to complex problems. Horizontal exercises like this one can be ideal vehicles for transitioning from book learning to the ability to counsel clients in real-life situations. That is one reason why horizontal studies like this one are not uncommon during the third year of law school.

Perhaps the most direct audience for this book, however, is the growing ranks of those business people and technological dreamers who are out there, even now, literally building a new world around us all by means of what we currently call “AR” or “augmented world” technology. I have been privileged to meet and interact with scores of these innovators who are rapidly forming an industry out of concepts that were pure science fiction mere months earlier. They have the foresight to recognize just how much our world will change when we finally master the art of interweaving our digital and physical means of experiencing the world.

When I speak at AR conferences and events or counsel clients in this industry -usually after the audience has already heard from several entrepreneurs who cast grandiose visions of what can be done with the technology - I sometimes joke that it is my job as the lawyer in the group to crush their dreams and bring them back down to earth. Yet my actual intention (both there and here) is quite the opposite.

1I borrow this description from another exercise in horizontal legal analysis, the excellent e-casebook Advertising & Marketing Law: Cases & Materials, by Rebecca Tushnet and Eric Goldman. Rebecca Tushnet & Eric Goldman, Advertising & Marketing Law: Cases & Materials, i (July 2012) (available at: Announcing a New Casebook: “Advertising & Marketing Law: Cases & Materials” by Tushnet & Goldman - Technology & Marketing Law Blog).

These innovators’ dreams are so inspiring because they actually have a chance at being realized. But if AR entrepreneurs are going to successfully bring their visions to fruition, they need informed guidance from advisors who understand the realities and requirements of the legal and business worlds. These advisors must shepherd the innovators through the tricky landscapes and potential pitfalls of regulatory checklists, investment deals, IP protection, and all of the minutiae on which visionaries ought not spend too much of their time. I want more members of this industry to recognize their need for such guidance for the legal services industry to be better prepared to provide it.

This leads to two more currents that are important for me to mention at the outset. First, this book cannot, and does not attempt to, provide legal advice. Consult a lawyer directly before making business decisions. Second, the laws discussed herein are almost exclusively those of the United States. Although the AR community is truly worldwide and many legal and ethical principles cross national boundaries, it is the American legal system in which I practice and that forms the context for my analysis.

THE LAW OF THE HORSE

Today, there is almost no one who could honestly be called an “AR lawyer.” This will remain true for some time, even as the industry begins to mature. One reason for this is that “AR law” is a concept much like a term I learned in my law school days: “the law of the horse.” This phrase illustrates the difference between vertical and horizontal legal studies. The idea behind it is that there is no such thing as “horse law.” Rather, if I own a horse and have a problem with the jockey, for example, I would seek counsel from an employment lawyer. If my shipment of hay doesn’t arrive, I should consult a commercial transactions attorney. And if my neighbor complains about the smell of horse ranch, I might consult an attorney experienced in nuisance law.

Each of these lawyers would be practicing some aspect of “horse law,” in some colloquial sense, but you would not call any of them a “horse lawyer,” because lawyers do not usually hold themselves out in that manner. Lawyers typically market their services according to particular categories of legal doctrine or practice. Historically, relatively few lawyers have packaged their services according to the needs of a particular industry, even though it might be more efficient for our hypothetical horse owner to find a lawyer or law firm specializing in “horse law” than to seek counsel from different specialists on each issue.

I first heard this “law of the horse” analogy applied to “Internet law,” to make the point that there was no such thing. Rather, the Internet and its use implicate virtually every legal vertical, depending on the context. “Internet law” is a horizontal subject (and thus not worthy of study in a law school, or so was the implication when I first heard the term used).

In the same way, “AR law” is also like the law of the horse. Defined literally, “AR law” encompasses all of those fields of legal practice that AR companies will encounter - including corporate, tax, intellectual property, real estate, litigation, and personal injury, among others. Indeed, if AR reaches even half of its potential, it is poised to revolutionize society at least as much as the Internet itself has done. It is inevitable, therefore, that such a sea change in how we conduct ourselves on a daily basis would also influence the laws governing that behavior and how they are applied. Yet, even today, we still see relatively few lawyers marketing their expertise in “Internet law,” and virtually none have yet grasped the significance of AR as such.

Today, more lawyers and law firms recognize the value of organizing their services according to clients’ needs rather than by traditional categories of practice. This, in part, is why many law firms have assembled “industry teams” focused on the needs of particular types of companies and comprising a number of specialists from relevant legal disciplines. Practice groups like these are one way in which legal professionals can more comprehensively and efficiently serve the needs of horse owners or any other given industry. Working within a general practice firm composed of lawyers working in dozens of different focus areas is another.

As only one such example, I help to lead my firm’s “Social, Mobile and Emerging Media Practice Group,” so named so as to encompass both the social media that presents today’s most pressing digital media issues and tomorrow’s emerging media such as AR. For several years now, I and other members of this team have gotten to know professionals within the AR industry and - together with other members of our general practice firm - helped them solve the issues they encounter across a broad spectrum of legal disciplines. It gratifies me to say that I am not personally aware of any other legal practice group as focused on the AR sector. As the inevitability of AR becomes more apparent, however, I expect that we’ll see more such teams intended to serve this important industry.

WHY STUDY AR LAW?

If you are not already as enamored of the AR industry as I am, you may not yet be convinced that AR law is worth your time to study. In that case, allow me to recount some of the reasoning that led me to conclude that this field will be so important.

INEVITABILITY

In this chapter I have already used the word “inevitable” to describe the increasing prominence and impending ubiquity of AR. That is because I see AR not so much as a brand-new concept that will someday suddenly emerge onto the scene, but rather as a medium that has existed for decades and that is beginning to manifest itself with increasing speed as we finally see the development of the technology that can make it happen.

There are dozens of factors fueling the inevitability of widespread AR. Since consonance makes things more memorable, however, I will summarize them as the three C’s of convenience, creativity, and capability.

Convenience

Not many years ago, humanity’s best means of reading and recording data was on two-dimensional pieces of paper, which we stitched together and stored in books. When that data began to migrate onto computers, we displayed it on monitor screens, and books became files and folders. Over time, the screens became incrementally more aesthetically pleasing - flatter, higher-resolution, and more mobile - and even displayed some digital images that had the illusion of three-dimensionality. But the context in which these displays have appeared - the computer screen - has always been a two-dimensional rectangle.

AR is a unique step forward in the way we experience digital data, because it liberates that data from its two-dimensional box to make it truly appear (as far as human senses can perceive) to be three-dimensional. Granted, there will almost always be some medium (such as eyewear, a window, or a mobile device) through which we experience the display, and those media will remain two-dimensional for the foreseeable future. But AR creates the illusion that the display is present among, and even interacting with, our physical surroundings. Perception is reality, as the saying goes, and it is the perception of this illusion that we call “AR.”

One fundamental reason that there will always be an impetus to experience data in this format is that physicality is intuitive to us. As children we have to learn to read and write, but playing with physical objects comes naturally. The less work our brains need to do in order to translate and process data, the more readily our minds will embrace it.

Take, for example, the yellow line of scrimmage and the blue first-down line that appear in most televised football broadcasts these days (Fig. 1.1 ). The technology to

FIGURE 1.1

NFL broadcasts contained some of the earliest examples of mass-market AR.

FIGURE 1.2

The Iron Man films are among the most popular depictions of AR.

create this illusion is actually one of the earliest forms of AR in mass media. Today it is even more sophisticated, with all manner of game statistics appearing as if they were on the football field itself. And the images themselves are so high-resolution and rendered so fluidly that the illusion of physicality is complete. The result has been to make it significantly easier for viewers not schooled in the rules of the game to comprehend the action. It’s one thing to say “the offense needs to carry the ball 15 more yards to the 30-yard line”; it’s another thing entirely to say “they need to reach that blue line.” One statement takes significantly less mental processing to understand, which, for some viewers, is the difference between enjoying the broadcast and changing the channel. Indeed, I have heard from several people who attended their first live football game and were disappointed by the experience of trying to follow the game without the digital overlays on the field. For some children who have never watched a game on television without those overlays, the effect is jarring; they had never considered the fact that the lines weren’t actually there!

For the same reasons, there is a certain level of understanding about a thing that we as humans cannot reach unless we experience the thing physically. In my line of work, when young litigation attorneys are arguing a case involving a specific place or product, they learn the value of actually visiting the place or holding the product in their hands. That experience does not always reveal more quantifiable data about the thing, but there is a qualitative level of understanding that the attorney gains. They feel as if they understand the thing better, and are therefore often better able to form and express arguments about it.

The Iron Man movies offer another example of the same truth. I