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Pokemon Stop: Gaming Sensation Raises Potential Legal Issues

Authored by Christopher Powers, Summer Law Clerk

As you may have heard, Pokemon Go is sweeping the nation, including Central New York.

Pokemon Go is a downloadable mobile app where players try to find different characters from the popular Japanese cartoon and video game on a virtual map based on a user’s actual surroundings. The app uses GPS and other geolocation features on a user’s smartphone to places the virtual characters at local landmarks. Then, the player then must go to the place and use traditional gaming techniques to “capture” the character. Pokemon Go was released on July 7, and has become a worldwide sensation. Within a week, the game already had been downloaded more than 10 million times, according to CNN.

Pokemon Go is being credited with spurring traditionally homebound gamers to explore their communities while getting exercise and also building impromptu friendships among participants.

But it’s not all fun and games, so to speak. The Pokemon Go phenomenon, and the other similar types of so-called augmented-reality games, implicates multiple legal issues, from the simple to the potentially dangerous. The rapid growth and relative lack of knowledge surrounding the game have prompted numerous warnings from law enforcement and other municipal entities about the dangers of the game. Other examples of how the game raises real legal questions include:

  • Trespass/Nuisance. The game is meant to be played in public spaces, but there is still potential for game pieces to be placed on private property, either by design or by mistake. Such an instance could potentially create issues of trespass and opens up the concept of “attractive nuisance” (which essentially makes homeowners liable if a child is injured by the homeowner’s irresistible property, like a swimming pool or, potentially, a Pokemon Go game piece.) While it may seem far-fetched to the uninitiated, an interesting discussion about this has already spawned in the comments section of this website.
  • Assembly. Even confining the game to public spaces may be problematic in its own way. A blogger for the Hollywood Reporter suggests that the competition for game pieces in augmented-reality games will inevitably spill over into the real world and possibly lead to violence. He also foresees, albeit in the distant future, a time when augmented-reality games will foster First Amendment concerns.
  • Robbery. A group of teens in Missouri used the app to lure unsuspecting players to a particular location in order to rob them, according to USA Today.
  • Distracted Driving. New York Vehicle & Traffic Law (VTL) § 1225-d prohibits the use of an electronic device while operating a motor vehicle. VTL § 1225-d is best known as the no-texting-while-driving law, but the definitions in the statute would clearly apply also to someone playing Pokemon Go (or any other virtual game, for that matter) while driving or stopped in traffic or at a light. In New York, anyone who uses a “portable electronic device in a conspicuous manner” is presumed to be violating the statute, so it’s best to do your gaming outside the car. See VTL § 1225-d(4).

All things considered, though, Pokemon Go and other augmented-reality games are just forms of entertainment. Since augmented reality is new, most of these issues are speculative and nowhere near settled. For now, enjoy the game, be careful, and be courteous. But don’t be surprised if the continuing evolution of the augmented-reality industry leads to new, unprecedented legal issues.

Even if You’re Eligible for a Ticketmaster Refund, That Doesn’t Mean You’ll Get It

Authored by Christopher Powers, Summer Law Clerk

This week, the new Lakeview Amphitheater in Syracuse, N.Y., hosted one of the biggest concerts of the summer in these parts. The sold-out Dave Matthews Band concert was the first show of the season, and first ever sellout, at the new venue, which opened in 2015.

The kickoff of concert season coincides perfectly with the settlement of a major legal dispute that has implications for concert-goers, here in Syracuse and across the country, for months and possibly years to come.

Earlier this week, the parties in Curt Schlesinger et al v. Ticketmaster,  settled their 13-year-old class-action lawsuit. The suit was filed in 2003 when two music fans who had purchased concert tickets through the online ticketing platform Ticketmaster complained that the service’s fees were excessive and misleading. In 2011, the parties agreed to a settlement whereby Ticketmaster agreed to return money to fans. The logistics of those refunds were finally agreed to, and that’s what made headlines this week.

As part of the agreement, anyone who bought tickets using Ticketmaster’s website between Oct. 21, 1999, and Feb. 27, 2013, is eligible to receive vouchers for free and/or discounted tickets. Depending on how many tickets a person bought via Ticketmaster during that time frame, a person may be eligible for anywhere from 1 to 17 vouchers. The number of vouchers customers are eligible for will appear when they log in to their ticketmaster.com account.

Three types of vouchers are possible: (1) a $2.25 discount on any ticket; (2) a $5.00 discount toward UPS delivery of any ticket; or (3) two free general admission tickets at venues owned or operated by Live Nation Entertainment, the entity that owns Ticketmaster. The first two types apply to any ticket purchased through Ticketmaster, while the free general admission vouchers only work for a select list of concerts provided by Ticketmaster. Some of the more well-known performers for whom the Live Nation vouchers may possibly be used range from Keith Urban to Duran Duran to Darius Rucker to Steely Dan to Kool & the Gang and many others.

You may have received an email from Ticketmaster alerting you that you are eligible for a discount. However, actually redeeming that discount is where it can get tricky for consumers. The company has indicated that vouchers will be redeemed on a first-come, first-served basis, so the first movers will have the advantage. The terms of the settlement dictate that Ticketmaster is obligated to pay out $42 million in discounts over the next four years. At first blush, that seems like a substantial amount of money. Upon further inspection, however, it doesn’t equate to significant, if any, savings on future ticket purchases. According to The New York Times , Ticketmaster already has sent an estimated $386 million worth of discount codes to nearly 57 million people. If each person who claims a voucher only claims the $2.25 option, that means that only 18,666,667 people, at most, would get a discount. Almost certainly, the number will become far less than that as more expensive options are redeemed. Additionally, the list of eligible shows where the general admission vouchers may be redeemed currently includes zero shows in Upstate New York, making redemption for local consumers even less likely.

The bottom line is that, yes, you may be eligible for a discount, but unless you act fast and are willing to travel, you may not ever see it.


Changes Coming in the Archaic New York State Alcoholic Beverage Control Law

Governor Cuomo announced this past week that he is advancing legislation to “modernize” the State’s Alcoholic Beverage Control Law (“ABC Law”). As someone that has spent years of my life ensuring license applicants comply with the law, first as an employee of the Liquor Authority and more recently as counsel to individuals and entities appearing before the Liquor Authority, this is a welcome announcement. While we don’t yet know all of the exact details and language, we do know some of the areas the Governor is proposing to change. They are as follows:

Expand Sunday Sales – Current law prohibits sales of alcoholic beverages for all on-premises locations (e.g., bars, restaurants, taverns). The Governor has proposed a special permit that licensees can apply for to allow them to serve patrons between the hours of 8 a.m. and 12 p.m. on Sunday mornings.

“Two Hundred Foot Law” – ABC Law currently prohibits on-premises licenses from operating within two hundred feet of a building that is exclusively used as a school or place of worship. The current proposal would do away with the outright ban and provide the Liquor Authority with discretion on this matter and also provides for input from the local municipality and school or place of worship. Often times a local church would have no objection to a business opening nearby and now that can be considered in determining whether or not to grant the license.

Reduce Paperwork for Craft Manufacturers – Anyone that has ever completed a liquor license application in New York can appreciate this proposal. Craft Manufacturing (breweries, wineries and distilleries) has seen enormous growth and change In New York State over the last decade. According to the Governor’s office, this portion of the industry, combined with distribution and retail, accounts for more than $27 billion in economic impact and supports tens of thousands of jobs statewide. Prior to 2012 manufacturers could not hold more than one manufacturing license. So if an entrepreneur wanted to make both wine and beer they would have been required to have a separate facility for each. In 2012 the law changed so that a manufacturer could hold more than one license in the same location. The current proposal would combine craft manufacturing licenses into one application considerably reducing the burdensome paperwork for these small businesses.

Authorize the Sale of Wine in Growlers – We’ve all seen growlers of craft beer for years so why not wine too? Current law requires that wine sold at retail for off-premise consumption be kept in their original sealed containers. The Governor’s proposal would change that law allowing customers to go to their favorite wineries and fill a growler with their favorite wine. The legislation would also authorize wineries to allow customers to take home partially finished bottles of wine.

Reduce Fees for Craft Beverage Salespeople – Currently ABC Law requires that any salesperson employed by a manufacturer or wholesaler must obtain a “solicitor’s permit” in addition to a bond. Recognizing that all manufacturers are not created equal and vary greatly in size and that there is a financial hardship imposed by unnecessary fees on small business the Governor has proposed reducing the fees for a solicitor’s permit and eliminating the bond requirement.

I think most New Yorkers will agree that reducing the bureaucratic burden on small business is a positive development for our local economies and these proposals will encourage growth within the industry and add to the already great choices of New York manufactured alcoholic beverages. Stay tuned for more updates on the changes to the ABC Law as we learn more of the specifics.

U.S. Department of Labor Issues Final Rule on FLSA Overtime Regulations

On May 18, 2016, the U.S. Department of Labor published its long-awaited final rule amending the federal Fair Labor Standards Act (“FLSA”) overtime regulations regarding the executive, administrative and professional exemptions (the “FLSA White Collar Exemptions”).  The outside sales and computer professional exemptions are not subject to the new amendments.

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NYS Real Estate Transfer Tax on Conveyances of Real Property

In New York State, sellers who convey an interest in real property are required to pay New York State real estate transfer tax. In the usual sale of real property, the real estate transfer tax is computed at a rate of $2 for each $500 of consideration or fractional part thereof. For example, in a transaction in which the consideration paid is $100,000, the real estate transfer tax will be $400. The transfer tax is due when the instrument effecting the conveyance, which is a deed in the case of an interest in real property, is delivered from the grantor/seller to the grantee/buyer in the transaction.

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Federal And New York State Tax Advantages Of Long Term Care Insurance

If you have looked into purchasing long term care insurance, you know that it is an expensive proposition. However, there are some tax advantages related to the premium payments for long term care insurance.

If you are an employee and itemize your deductions you can deduct a portion of your long term care insurance premium as a medical expense on Schedule A of your 1040, itemized deductions.

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A Living Will is Not a Will (But No Less Important)

Lawyers are occasionally guilty of speaking legal jargon that a non-lawyer has no idea what the lawyer is talking about. For example, an estate planning lawyer (or perhaps an estate planning website you found) may suggest that you execute a living will in addition to a will, health care proxy and power of attorney. You probably already know that a will is but may have no idea what a living will is.

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How Safe is Your Employees’ Personal Information? Employers Must Take Immediate Action.

The IRS issued an alert on March 1, 2016 to payroll and HR professionals about a new phishing scheme involving W-2 information. Employers need to take immediate steps to confirm the security of their employees’ personal information.

The alert describes a scheme which has already claimed several victims. Payroll and human resources officers have mistakenly emailed payroll data including W-2 forms that contain social security numbers and other personally identifiable information to cyber criminals who posed as company executives.

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What it Means to be a Trustee – Part 1

Flattered to be named a trustee? Curious as to what it all means? Great, we will do a number of blog posts on the duties and powers of a trustee. This is the first such blog post.

Trusts are used for a multitude of purposes. Estate planning, charitable gifts, disability planning, tax reduction and avoidance of probate are but a few uses for trusts. Despite these different purposes, the trustee has similar duties derived from the trustee’s status as a fiduciary.

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Disclaimer: This blog is for educational purposes; to provide readers general information and a general understanding of the law, not to provide specific legal advice. By using this blog all readers understand that there is no attorney client relationship between the reader and Mackenzie Hughes LLP, the publisher of this blog.

Prior results do not guarantee future success.

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