Pokémon Go and the Evolving Arena of Clickwrap Enforcement against Children

According to the official Pokémon website, “kids all over the world have been discovering the enchanting world of Pokémon [for over 15 years].” Not surprisingly, many of us who used to be kids in the 15+ years are playing Pokémon Go, but who would have expected nearly 4 of every 5 Pokémon Go players (almost 80%) to be adults. Put into perspective—at Pokémon Go’s peak of 25 million daily active users, close to 20 million adults may have been playing the location-based augmented reality mobile game every day! Still, that also means at least one out of every five players are children, which in turn represents millions of daily active users against whom one or more provisions of Pokémon Go’s Terms of Service (TOS) might be unenforceable.

In particular, children’s status as minors may prevent Niantic from enforcing its TOS against them due to common law, as well as some state statutes, that allow a minor to void a contract any time up to and within a reasonable time after he or she reaches the age of majority (so long as the contract is not a contract for a “necessary” purchase, e.g., food, water, etc.). Typically, if the minor voids the contract, the other party (e.g., Niantic) may still seek “restitution” from the minor, such as payment for benefits that the minor received via the contract, the return of goods that the minor received via the contract, etc.

In the era of clickwrap agreements, however, at least one federal district court has found that a minor cannot escape the terms of a clickwrap agreement for use of the other party’s software after already receiving the benefits from using the software. For example, in an Eastern District of Virginia case, high school students sued a plagiarism detection software company for copyright infringement for storing copies of the students’ papers in its digital archive (so that the papers can be used for comparison with future papers to detect plagiarism). As part of its defense, the software company argued that the students were bound by its clickwrap agreement’s limitation of liability provision, which disclaimed any liability for any damages arising out of the students’ use of its service (e.g., damages arising from the submission and archiving of their papers via its service). The district court agreed, concluding that the students received benefits from entering into an agreement with the software company, such as the grades they received from teachers after using the software company’s services to submit their papers, and that the students could not use the “infancy” defense to avoid their obligations under the clickwrap agreement while retaining the benefits of the agreement. Although this district court’s dismissal of the copyright infringement suit was affirmed on appeal, the Court of Appeals simply held that the software company’s archiving of the students’ papers for plagiarism purposes is protected under the copyright law’s fair use doctrine without addressing the enforceability of the clickwrap agreements as applied to minors, thus, leaving the district court’s ruling undisturbed.

Like Pokémon, we expect case law regarding the enforceability of clickwrap agreements against minors to evolve. Until then, the foregoing district court’s case may certainly be helpful for Niantic or other augmented reality game companies against lawsuits by minors who are hit by cars, or otherwise harmed, while trying to achieve one or more goals of a game.