A Layered Discussion of Hollywood & Google Maps
10/22/2012 1 Comment
We’re going to discuss real estate and films and technology in this post, so don’t get scared by our opening section on real estate – there’s a point that is very technology, and yes, comics, related.
There’s something new happening in the world of real estate… new land is being formed even as we type, right in front of our eyes. This new land is not made of rock – it’s digital. No, we’re not talking about World of Warcraft or some other gaming system with purple trees and elves with swords. We’re talking about a digital technology that is changing – augmenting – reality as we see it, real estate as we experience it, and real property as we define it. This “Augmented Reality” technology is a live camera view (most often via your smartphone camera) of a physical, real-world environment whose video elements are augmented by the camera’s computer – basically, the computer understands what your video camera is looking at and can add digital information or graphics into the video scene in real time, adjusting the pose, perspective, and even lighting to make these new elements look like they are a part of the native environment. The computer augments reality.
As others have started to report, (mashable) (2) (3) (4), Augmented Reality is beginning to be super-imposed on real estate (billboards, building fronts, etc.), resulting in a burgeoning area of law – virtual air rights – to complement an existing area of computer law – virtual property rights. Virtual Property Rights relate to ownership and control over virtual property – electronic intellectual property (ideas, information, plans, pictures, etc.) residing on computers. However, Virtual Air Rights are different and are an extension of physical property into virtual space.
As background, in traditional (real world) property law, physical property can have “air rights” above and around that property – the exclusive right to use that physical air space for certain purposes. This is most typically represented in an air-rights lease, where a land owner leases the air space above his land to a building developer. The developer erects an office building or other commercial space into the airspace over the land (up to a given height as provided in the lease), and the lease in turn gives him the exclusive right to use the ground underneath the airspace and the new building. The exclusive rights to the air space over the land often extend to the limits of space, but can sometimes be limited to a fixed altitude, depending on the desires of the land owner, permit regulations, or other externalities. A successful air rights lease is able to coordinate or avoid these external forces, often through complicated and expensive political means. Thus, an exclusive air-rights lease is a valuable property right in and of itself, and is an important bankable asset to a building developer. Principally speaking, “property” derives much of its value from the right to exclude other people from it. Those property rights – air rights included – are less valuable when they are not exclusive.
Additionally, our society has seen an explosion of external building facade leases – a building owner will lease the exterior surface of his building to an advertising company for the installation of supergraphic advertisements (billboard advertisements the size of the building wall). These leases, too, can be a very valuable asset, with supergraphic ad rates running more than $100,000 per month (a particularly well-positioned building in Los Angeles, for example, has been known to earn $350,000 per month for supergraphics on its walls). The rates are dependent upon i) the volume of traffic near the wall (i.e. potential audience), ii) the desirability of the demographics of the surrounding area and resultant traffic, iii) the “viewability” of the wall (is it in a good line of sight, elevated, or otherwise blocked from the traffic’s view), iv) the availability of other advertising options in the area, and v) the number of other distracting supergraphics on other nearby buildings. Supply and demand definitely play a part in the pricing of these ads, but again, exclusivity is also important for setting those prices (how much would an advertiser pay if the wall were layered in different ads, making the whole wall essentially unreadable?).
Virtual Air Rights (VAR’s) come into play when there’s a new “virtual” or digital use of a physical air space. How should we evaluate these virtual air rights? Can a property owner enforce exclusive control over all virtual space around his property? Let’s pull that question – and the underlying technology – apart. When someone creates a virtual space (i.e. a website or other digital recreation of real space), they have in effect created a whole new landscape. And they can do this an infinite number of times, even if using real space as an anchor spot for their digital creation. All they have to do is make a new “layer” which exists simultaneously with all the other “layers” of virtual space. Suppose we have a programmer creating a virtual space. Programmer #1 can certainly put access restrictions in place to exclude people from Virtual Space #1 – but those excluded people can also make their own digital layers as Virtual Spaces #2, 3, 4, 5… ad infinitum, if they so choose, which exist simultaneously with Virtual Space #1, without interfering with Space #1 or the underlying physical space. This non-interference could be the lynchpin for legal determinations on the subject when a testable case arises.
Testable virtual space scenarios do exist, such as when someone takes a picture of a real world billboard, puts that picture online, uses computer software to alter the billboard’s image, and superimposes a new ad on the billboard but leaves the rest of the image untouched. This isn’t far fetched – Google has filed this very patent for its Street View mapping display system. When Google’s photographic cars drive the streets of the US, they capture everything on camera, and then use those images to recreate an eye-level view of the world on your computer. Because the Google cars aren’t driving every street every day, their online images get older and older over time – so what you’re seeing in Google Street View is actually the world as it existed 6, 12, or maybe even more than 24 months ago. The Street View cameras also capture billboard ads in situ as the Google car drove by. The streets, buildings, and building facades change much less frequently than those billboard ads, so now Google has created a system to replace those billboard ads in Street View with newer ads – effectively superimposing new ads on top of the real life images of the billboards. Google has spent considerable time and money recreating this new virtual space, which is a useful tool for anyone looking for directions into a new part of town and would like visual cues of what a particular address looks like. Google can then certainly regulate i) who gets access to this Street View information, and ii) who gets to overlay a new ad on an old billboard – Google can exclude advertisers who don’t pay them for this right because there are additional costs involved in doing so and Google holds the keys to this new territory. But pointedly, there is nothing to stop someone else from coming up with the same result using a different method. (In this scenario, patent laws will protect Google’s method – and its virtual space layer – from competitors. So it is intellectual property law more than traditional property law that will rule this virtual space.)
Will this method of “virtual advertising updates” create any problems for Google? Since they have not implemented this system yet (at least not in a wide public roll-out), we haven’t seen any lawsuits regarding this practice, so it remains to be seen whether billboard owners will take umbrage with this practice, or be able to successfully litigate any cases on their merits. It’s hard to ever imagine CBS Outdoor rolling over and allowing Google to overlay CBS’s billboard with new ads that CBS didn’t sell. Thus the clash of old world property (CBS Outdoor) and new world virtual property (Google) arises anew in the advertising space.
Courts around the country have only just begun issuing determinations on property rights existing in virtual space. Most on point to the Google discussion above is a case where real-life Times Square billboards (sponsored by Samsung) appearing in Sony Pictures’ “Spiderman” movie were digitally altered in the movie to contain advertisements from brands other than Samsung and friendly to Sony. The Second Circuit Court of Appeals (New York) ruled that there was no violation of any property rights, trademark rights, or tradedress rights – denying all of the claims of the billboard owners and Samsung. (Sherwood 48 Associates v. Sony Corp. of America, 213 F. Supp. 2d 376 – Dist. Court, SD New York 2002) The ruling held that because movies are fictional, the filmmakers are allowed certain creative license in depicting the world as they’d like to see it – free speech in action, and a fairly settled area of law. But in the area of virtual property law, the court held that the new superimposed images in the movie did nothing to interfere with the real world billboard operations. The alterations existed solely in the movie and in virtual space, and had no functional impact on the real billboards.
Meanwhile on the West Coast a year later, the California Supreme Court weighed in on how an email, critical of Intel and sent over Intel’s internal email system, does not interfere with Intel’s physical property rights in its email system.
Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor’s use or possession of, or any other legally protected interest in, the personal property itself… Intel’s claim fails not because e-mail transmitted through the Internet enjoys unique immunity, but because the tort of trespass to chattels—unlike the causes of action just mentioned—may not, in California, be proved without evidence of an injury to the plaintiffs personal property or legal interest therein. (Intel Corp. v. Hamidi, 71 P. 3d 296, Cal. Supreme Court 2003)
This means that an electronic usage of a real world system does not damage that real world system merely because the electronic usage is associated with the real world system – there has to be some real damage perpetrated by the electronic usage (i.e. a computer virus damaging the system, an electronic libel issue damaging a person or entity associated with the system, or maybe a denial of service attack depriving the owner of use of the system). Just because an electronic use exists in relation to real world property does not automatically equate to a trespass to that property.
So it appears that initial court rulings have sided against claims of damages when a digital version of a real world space contains a new look or feel. After all – what was damaged? The physical space continues to be used the same way it was intended to be used, by the same parties. When someone like Google takes the trouble of creating a virtual world, they have effectively created a new usable landscape that is accessible only through their digital gates. No real space has been harmed in the making of their space – but like a digital volcano, they’ve created a new usable layer and doubled the usable space out there. So when a user of Google’s services steps through their digital gate, that user is essentially stating that they are willing to experience Google’s view of the world. Even if Google’s experience includes new ads, or new versions of a building’s exterior, or new buildings entirely, that doesn’t affect the real world or our use of real world articles or property. If Google has created a valuable experience, then more people will opt-in to that experience. If it’s not valuable, or if it’s damaging, then people will stop visiting. It’s a plain market-forces situation, probably not a legal one, that will determine if Google’s view of the world will continue. The real world continues on, just as before, but now Google’s users would be stating that they are voluntarily looking at the world with different eyes. How will property owners try to enforce their rights against a willing public that is simply viewing the world differently, and not damaging anything in the real world?
Is this appropriate? Would it be more appropriate for a property owner to also be able to exclusively lease off these Virtual Air Right’s? It sounds attractive (to property owners) but it also sounds like a logistical nightmare.
- How would we create a system to monitor the usage and exclusivity of these rights?
- Would we only enforce a land owner’s VAR’s against the most popular virtual worlds (i.e. only when a virtual version of the world has sufficient usage and popularity would we try to enforce rights there)?
- How would a land owner know what VAR’s are available to be leased? The VAR’s exist on digital platforms that are most often owned by third parties, not the land owner. And it is the third parties who create the most novel new ways of interacting with virtual space.
- Would we require that a land owner take the initiative and create the virtual worlds on which they lease their VAR’s? Is the land owner ultimately responsible for creating the highest and best use of their property?
So how would we encourage the creation of VAR’s? Or should we encourage it at all? While Google has patented its billboard replacement system, it has also been working on Google Glass – a set of eyeglasses that are powered by your smartphone and which display alternative information on top of the world you’re looking at through them. It doesn’t take much leap of the imagination to envision a time when so many people have opted in to Google’s vision of a billboard that they are no longer paying attention to, or engaging with, the real world billboard, potentially resulting in real economic loss to the billboard owner. Is this a bad thing? After all, the public had very little to do with the erection of that real world billboard in the first place. And ever since that billboard was put up, it began broadcasting its marketing messages to the public without their approval or opt-in – you can’t choose to unsee a billboard once you’ve driven past it, and you can’t participate in any of the decisions about which ad should go up on it. So the billboard owners were actually imposing their marketing messages on the public’s eye in the first place – is it a bad thing if the public chooses a way to see the world that doesn’t include that billboard owner’s particular message? What if there is a higher and better use of a billboard’s physical presence? What if there were a way to augment that billboard so that it provides better information, more relevant information, or more publicly-minded information? What if there were a way to make billboards disappear if you didn’t want to view them at all? Shouldn’t we want to encourage the creation of such a system and not wait for when – or if – the billboard owner decided to build something similar?
This kind of scenario now begins to bring into question commercial impact of augmented reality layers. As attorney and AR enthusiast Brian Wassom previously commented, AR’s “use in commerce” is also a new and developing area of law and society and worth exploring deeper – AR layers have the specific potential to use trademarks as data layer markers, and then those data layers (will likely) distract users from the underlying trademark or ad. It’s doubtful that a company will be allowed to use its competitors’ ads as triggers for information on its competing products – but what if they are simply categorical matches, instead of directly competing product matches? A categorical match expands the consumer’s options, instead of confusing them in regards to a specific product. Where does use of AR “in commerce” become too close to a trademark infringement?
Augmented Reality technology is making all of this happen right now. It can take the fantasy of the Spiderman movie and put it squarely on top of the real view of the world. It takes the layers of information created everyday on the internet, and brings those layers to the world around you. Is this a trespass, to superimpose information and graphics onto the real world? Is this a confusingly competitive use of the underlying object or image? Or is this a higher and better use of the real world, using real world locations and property as anchor-points for more and better information?
We at Holofy are doing what we can to create such a system that improves how billboards in particular, and printed advertisements in general, are seen and engaged with by the public. Holofy is a system that layers any print ad anywhere with A) information about hyperlocal businesses selling those products, B) information about associated groupons or local deals on similar products, and C) hyperlinks to the webpages of the underlying ads themselves (if anyone ever wants that). Our goal is to make all the ads already out there in the world – better. And make people aware that they can – and should – expect more from the world around them.