Last week, I blogged about the criminal portions of Mark A. Lemley’s and my new article, “Law, Virtual Reality, and Augmented Reality,” which the University of Pennsylvania Law Review has just accepted for publication. (Click on the link to see the whole article, including footnotes.) This week, I’m turning to our discussion of tort liability and shifting now from liability for users to liability for providers.
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VR and AR users will sometimes also physically injure outsiders. A player chasing a Pokémon might run into someone or might cause damage by trespassing on someone’s property. A VR user wearing a headset might walk into a houseguest. Those injuries will often be the fault of the user herself or someone else using the system. But sometimes the injury may result from flaws in the design of the VR or AR hardware or software itself. And that opens a second, more practical possibility: suing the hardware or software designer itself.
These design defects should be analyzed using normal tort law rules. Just as a car or bicycle manufacturer may be liable for physical injuries caused by defects in the device, so a VR or AR equipment manufacturer may be liable. If a defect in an AR headset, for instance, causes it to flash a very bright light that temporarily blinds users and leads them to run into people, that sounds no different from a defect in a bicycle’s brakes that leads the rider to run into someone.
Many such defects would stem from the VR or AR system providing incorrect information to people — for instance, an AR system defectively instructing you to turn in the wrong place, or a VR system that claims to sense whether someone walks into your room but then defectively fails to properly report it. The fact that information is involved complicates things, because the publication of information — even false information — might implicate the First Amendment. For instance, the 9th Circuit has held that the publisher of the Mushroom Encyclopedia isn’t strictly liable when you poison yourself because the Encyclopedia had bad information. On the other hand, the publisher of a flawed aeronautical chart is strictly liable when you use the chart to fly into a mountain.
Even if the Mushroom Encyclopedia case is correct, we think incorrect directional information provided by VR and AR that makes you walk into a wall is more like the incorrect directional information provided in aeronautical charts. Even more than with charts, people generally rely on instructions provided by their VR and AR headsets automatically, with no opportunity for reflection. Indeed, that is the whole point: If a VR headset shows a pathway for you to walk down, you’re supposed to walk down it. That assumes that the VR system is supposed to know where walls and other obstacles are, but they generally do.
The 9th Circuit’s effort to distinguish aeronautical charts from the Mushroom Encyclopedia is a little opaque, but it supports our position:
Aeronautical charts are highly technical tools. They are graphic depictions of technical, mechanical data. The best analogy to an aeronautical chart is a compass. Both may be used to guide an individual who is engaged in an activity requiring certain knowledge of natural features. Computer software that fails to yield the result for which it was designed may be another. In contrast, The Encyclopedia of Mushrooms is like a book on how to use a compass or an aeronautical chart. The chart itself is like a physical “product” while the “How to Use” book is pure thought and expression.
Even if a mushroom encyclopedia is “pure thought and expression,” because it teaches how to do something, a VR or AR headset is far from that. Instead, it’s an even more automatic “guide” than a compass: It offers visual cues that the user is meant to follow without thinking. It is like a physical product, albeit one composed in large part of information.