United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
case concerns a location-based augmented reality
(“AR”) mobile application developed by Plaintiff
Candy Lab, Inc. (“Candy Lab”). The app is a game
is called “Texas Rope ‘Em, ” and it is
reminiscent of the traditional poker game from which its name
derives. The game accesses the phone's rear-facing camera
during gameplay and overlays visual elements onto the image
of the real world as seen through the camera, including
playing cards which the user can collect. Part of the game
involves the user traveling to specific real-world locations
to collect these cards, with the aid of the camera images and
an in-game map.
first runaway hit in this game genre was Pokémon Go.
Although its storyline is, of course, quite different,
Pokémon Go has gameplay elements very similar to Texas
Rope ‘Em, including location-based and AR elements that
require players to travel to real-world locations to play the
game. Such locations include, at times, public parks owned
and maintained by Milwaukee County.
collectively referred to herein as “the County, ”
say that while playing Pokémon Go, players trashed
Milwaukee County parks, stayed after park hours, caused
significant traffic congestion, and made excessive noise.
Their impact ultimately cost the County thousands of dollars
in increased police and park maintenance services. In
response, the County adopted an ordinance (the
“Ordinance”) requiring those offering such games
to apply for event permits and secure garbage collection,
security, and medical services, as well as insurance.
Offering a game without a permit can result in a fine or jail
Lab wishes to offer Texas Rope ‘Em to County residents
to use in County parks. It does not want to apply for a
permit to do so, nor incur the fees associated with obtaining
the services necessary to secure a permit. Candy Lab brought
this action challenging the Ordinance on the ground that it
violates Candy Lab's First Amendment right to freedom of
before the Court is Candy Lab's motion for a preliminary
injunction against enforcement of the Ordinance and the
County's motion to dismiss the complaint for failure to
state a claim. The motions are fully briefed and, for the
reasons stated below, Candy Lab's motion will be granted
and the County's motion will be denied.
Texas Rope ‘Em and Augmented Reality Video
relevant facts are not in dispute. Candy Lab is a company
that has been developing location-based and AR software since
2011. Candy Lab not only creates its own applications but
also licenses its proprietary software engine to others.
applications are those that track the real-time physical
location of the device running the application, and allow the
user to interact with digital content based on the
device's geolocation. “Augmented reality”
refers to the digital enhancement of physical senses, most
commonly sight. Candy Lab's mobile applications augment
reality by superimposing images on a live video display from
a mobile device's rear-facing video camera, creating the
illusion that the image is physically present on the other
side of the device.
2016, Pokémon Go arrived on the scene. This mobile
game uses location-sensing technology and AR imagery to
create a game world in which players interact with digital
content in designated geolocations, called “game stops,
” and discover virtual creatures that are
algorithmically generated in response to players'
locations. Pokémon Go quickly became one of the
world's most popular mobile game applications.
March 2017, Candy Lab announced the launch of the first
location-based AR poker game, Texas Rope ‘Em. The goal
of Texas Rope ‘Em is to beat the dealer in the popular
poker variant “Texas Hold ‘Em.” Players
begin the game with two of the five required playing cards.
To build their hands, players must carry their mobile device
to game stops indicated on the game map to obtain a new card.
Once the player has set his or her hand, the cards are played
against the dealer. If the player loses, he or she can try
again. Players who beat the dealer win points and, in future
versions of the game, will be able to win in-app bonuses or
prizes. Candy Lab reports that none of these prizes will be
worth money. See (Docket #18 ¶ 7).
with its name, Texas Rope ‘Em has a Texas theme,
including graphics and a color scheme that evoke the Wild
West. When a player travels to a game stop and chooses a card
to collect, the game generates an animated lasso that whips
forward and grabs the selected card. Candy Lab's CEO
describes this as reminiscent of “rustling up”
cards like a cowboy would with cattle. Id.
¶¶ 5-6. However, there are no other characters in
the game besides the player and the dealer, and the dealer is
not itself represented or animated in any fashion.
Id. ¶ 4.
Rope ‘Em is currently in “1.0” or
“beta” form, meaning that although it is publicly
available, its functionality is limited compared to the
anticipated full public release. The game is currently
playable in select cities, including Milwaukee, and is being
actively showcased at technology events. The game is
presently free to download and play, though later versions
will likely offer in-app purchases.
Pokémon Go and the Rise of Discontent
unanticipated popularity of Pokémon Go in July 2016
drew thousands of users across the country outside while
playing the game. One member of the Milwaukee County Board of
Supervisors (the “Board”), Sheldon Wasserman
(“Wasserman”), says he received complaints that
large numbers of people were playing the game in his
district's Lake Park, some of whom littered, trampled the
grass and flowers, and stayed past park hours. There were
also reports of inadequate bathrooms for parkgoers,
unauthorized vendors in the park, parking violations, and
significantly increased traffic congestion. Wasserman claimed
that, as a result, the County was forced to spend tens of
thousands of dollars on additional law enforcement and park
maintenance services. See (Docket #2-1 at 2).
proposed Resolution 16-637, which became Section 47.03(3) of
the Milwaukee County Code of General Ordinances, to regulate
games like Pokémon Go by targeting the companies that
publish them. Multiple supervisors spoke against the
Ordinance during deliberations, disputing Wasserman's
claims about the game's impact. These officials argued
that the gamers were not causing disturbances and that it was
a positive development to see a diverse new group of people
using the parks. They perceived the true driving force behind
residents' complaints to be fear of the unknown and
umbrage at an unanticipated increase in use of the nearby
emphasized that the Ordinance was not directed against
Pokémon Go players, but instead sought to regulate the
businesses that profit from them. Wasserman believed that the
Ordinance could help control the growing popularity of games
like Pokémon Go and, perhaps more importantly,
leverage that popularity to make money for the County, which
was required to maintain the parks which were so heavily used
February 2, 2017, the Board adopted the Ordinance by a vote
of 13-4. On February 20, the Ordinance was published and
became effective. The Ordinance reads, in relevant part:
(3) Permits required for location-based augmented reality
games. Virtual and location-based augmented reality games are
not permitted in Milwaukee County Parks except in those areas
designated with a permit for such use by the Director of the
Department of Parks, Recreation, and Culture [(the
“DPRC”)]. Permits shall be required before any
company may introduce a location-based augmented reality game
into the Parks, effective January 1, 2017. The permitting
application process is further described on DPRC's
website for companies that create and promote such games.
That process shall include an internal review by the DPRC to
determine the appropriateness of the application based on
site selection, protection of rare flora and fauna, personal
safety, and the intensity of game activities on park lands.
Game activity shall only occur during standard park hours,
unless otherwise authorized by the DPRC Director, who has the
authority to designate special events and activities within
the Parks outside of the standard operational hours.
(Docket #2-1 at 4). The resolution adopting the Ordinance
(but not the codified language itself) defines “virtual
gaming” as “an activity during which a person can
experience being in a three-dimensional environment and
interact with that environment during a game, and the game
typically consists of an artificial world of images and
sounds created by a computer that is affected by the actions
of a person who is experiencing it; and. . .[further provides
that] Pokémon Go fits the characteristics defined by
virtual gaming and is considered as such by the standards of
the DPRC.” Id. at 3. The Ordinance does not
define the term “location-based augmented reality
games, ” although it implies that Pokémon Go is
such a game. See Id. at 2.
DPRC website notes that the “Milwaukee County Parks
2017 Special Event Application” (the “Permit
Application”) is required for “virtual
gaming.” The 10-page Permit Application requests a
large amount of information about a proposed event, such as
estimated attendance, location within the park, event dates
and times, a site map, and whether and how the event will be
advertised. See Id. at 16-26. It requires detailed
plans for garbage collection, on-site security, and medical
services, and warns that applicants will be responsible for
these services. The Permit Application requires applicants to
have liability insurance and make it available on-site for
inspection. It also requires payment of several fees, and
reserves to the DPRC the discretion to demand more
information. Further, the Permit Application cautions that
“[s]ubmittal of an application does not automatically
grant [an applicant] a permit or confirmation to conduct your
planned event.” Id. at 18. Indeed, the
Application warns that “Milwaukee County Parks in its
sole discretion may grant, deny, revoke, or suspend any
permit, at any time and for any reason.” Id.
Ordinance was codified at Section 47.03(3) of the County
Municipal Code. Chapter 47 of the Code regulates County
“Parks and Parkways.” Section 47.29(1) specifies
that the penalty for violation of a provision of that chapter
is a fine of not less than $10.00 nor more than $200.00. A
court may order up to ninety days of jail time if the fine is
not paid. Additionally, police officers can arrest violators,
and the DPRC can issue citations in addition to the penalties
described in the municipal code.
March 2017, Candy Lab's CEO, Andrew Couch
(“Couch”), contacted the County to explain Texas
Rope ‘Em and confirm that Candy Lab requires a Special
Event permit before releasing its game to the public. DPRC
Special Events Coordinator Ryan Broderick
(“Broderick”) responded, “you must complete
the attached Special Event Application and submit with a map
of all of the areas that you would like to add virtual gaming
stops.” Couch again responded to confirm ...