An Introduction to Augmented Reality and the Law

This will be another post based on work I did during my time at the University of Edinburgh last year – this time covering the weird and wonderful topic of “augmented reality”. While it may sound like a rather sci-fi idea, augmented reality is posed to become more and more a part of our everyday life, especially in our interactions as consumers. I’d like to thank the excellently titled “Professor of Computational Legal Theory” Professor Burkhard Schafer for his fascinating, and at times bizarre, course on AI, Risk and the Law, in which we discussed sex robots, virtual reality courtrooms, penguins living on landmines and many other “you-had-to-be-there-to-understand-why-it’s-relevant” topics, and for giving me the chance to research this emerging and most likely problematic area of law.

Augmented Legality:[1]

An Introduction

The term “augmented legality” was coined  by Brian Wassom, a Michigan lawyer and AR law expert with his own augmented reality blog, the legal section of which is entitled ‘Augmented legality’. I use this term with Mr Wassom’s blessing and thank him for his invaluable contribution to an otherwise-difficult-to-research field. Even if I am rather jealous he came up with that phrase before I did. When beginning to research on the potential and use of “artificial reality” in the justice system, I had images of grand ethico-philosophical debates about the nature of reality in an increasingly technologically complex world, of in-depth analyses of legal implications of artificial worlds and realities of online-gaming, of the integration of simulated reality into court proceedings… However, I finally decided to focus upon the area of “augmented reality” (AR), a technology that seems poised to infiltrate most areas of our lives in the coming years,[2] yet its practical and legal implications seem to remain much misunderstood. This article attempts to deal with the changes this technology is bringing, or might bring, to on-the-ground law enforcement and safety measures, as well as more technical legal implications in and out of the courtroom, and finally how the law and legal frameworks will have to adapt to the impact of AR in areas such as advertising, privacy, liability and free speech.

A Background to AR

AR has been defined as “a real-time direct or indirect view of a physical real-world environment that has been enhanced/augmented by adding virtual computer-generated information to it”,[3] though the exact scope of what is AR can be difficult to define due to the wide range of potential applications of sensory input to environments. The most recognisable forms of AR are visual overlays on a screen or headwear that provide further information, map models or context-sensitive menus.[4] Some of the earliest and best known examples of AR are of course weather maps, as seen on the news – as is probably not a revelation to the reader, the map is a blank (generally blue or green) screen onto which various different images, videos and animations can be superimposed.[5] Even this familiar example has become more technologically impressive and augmented today with more dynamic information being shown, and the ability to watch the presenter ‘interface’ with the information with gestures or smart devices, similarly done in election results coverage.[6]

The way AR looks most readily posed to enter our lives, however, is through smartphones and other personal smart devices. For several years, numbers of smartphone users have soared. According to a 2012 survey, around half of the US mobile consumers own smartphones;[7] in the 25–34 age range smartphone ownership was reported to be at 62%.[8] Figures range from 44%[9] to 73%[10] on smartphone usage; Europe[11] and China[12] are showing similar trends towards uptake. People are using apps more and more for browsing, shopping, searching for information and social networking.[13] The hardware and software capabilities of smartphones allow many app developers to put AR to creative uses.[14] Meanwhile there is significant development towards AR-enhanced head mounted displays (HMDs) such as Google Glass,[15] which is the ideal platform for seamlessly integrated visual delivery of overlaid information.[16]

To Protect and Serve

Law Enforcement

In analysing AR’s impact on law and the judicial system, it is important to first look at how these technologies can change the very nature of on-the-ground law enforcement. As with many new technologies, there are possible benefits, but also risks, posed by AR technologies for law enforcement. It is easy to imagine how real-time locational information, enhanced communication and facial recognition software could be of use to police officers,[17] as demonstrated by the Golden-i Police Pro HMD developed by Ikanos Consulting, who also market this technology for fire-fighters, paramedics and maintenance workers, which allows users remotely control other devices, identify suspects, receive alerts from motion sensors, scan license plates, monitor basic vital signs and call up floor plans and GPS coordinates.[18] AR applications “have the ability to create Subject Matter Experts (SMEs) on the fly with the proper set of visual instructions.”[19] Joseph Rampolla[20] notes how facial-recognition could be used in conjunction with existing criminal databases, particularly alongside UAVs and security cameras to identify criminals,[21] as well as how AR-enhanced videos and 3D maps of crime-scenes could aid criminal investigations.[22]

Rampolla also mentions the dark side of AR and the potential law enforcement challenges arising from use of AR by criminals. AR has been enthusiastically adopted by the pornography industry, even if the current applications are early-stage,[23] the prediction is of full utilisation of this technology for a more ‘interactive’ experience.[24] However, Rampolla points out;

Consented adults can do what they like, but eventually AR porn will pave the way for the next wave: Augmented Reality Child Porn.  You may want to dismiss this fact but the question is not if but when this will happen.[25]

On this note, another smartphone app which has hit the market is the ‘Sex Offender Tracker’, which uses facial-recognition and offender databases to highlight offenders when viewed through the AR device,[26] which, regardless of beneficial utility, could raise serious privacy questions, which will be dealt with further below.

Military Applications

Unsurprisingly, the military is an area which is particularly interested in the promise of AR wearable-“HUD”s[27] and has provided much of the research and funding into sophisticated AR technologies. DARPA[28] are currently working on their SCENICC[29] project to bring AR display to contact lenses,[30] current considered the pinnacle of visual integration of AR informational overlays. Private companies are also developing military-grade HMD AR technology such as Liteye.[31] One can see how these technologies are poised to change the nature of military work and indeed already have.[32]

Safety Measures

Much of this technology can also be applied directly to areas of safety regulations and emergency response. The same HMDs that can be utilised by law enforcement can also be used to help paramedics and fire-fighters with HUDs displaying vital signs, signs of injury, facial-recognition or RFID linking to previous medical records, structural weaknesses in buildings and enhanced communication with colleagues and with a central HQ. This technology has been applied to safety guidelines for nuclear power-plants.[33] This does, however, beg the question of whether or not an over-reliance on such AR technologies could lead to a situation in which, without AR, an emergency response cannot be conducted effectively.

The Law Inside and Outside of Court

Courtroom Integration

One of the most obvious effects AR could have on the judicial system is that of integration into the courtroom itself. Courtrooms are already seen to be changing to an ever-more high-tech environment;[34] how might this be further advanced by the advent of AR? For one, the ‘teleconferencing’[35] capabilities of AR – projecting real-time images and audio of people who aren’t physically there onto the seats in a room as if they were – could allow for individuals not to have to be physically present in a room to take part in a trial. While juries would more than likely need to be present for secrecy and integrity reasons, it is harder to see why a trial could not go ahead if one party, or even the judge were not ‘physically’ present but represented in a holographic real-time representation, with them similarly experiencing the courtroom virtually overlaid onto their vision from wherever they are. This would however require a change in some of the rules of courtroom procedure or the definition of being physically ‘present’ in a place. If this were accepted it could reach a situation where other legal requirements of having someone ‘present’ would need to be revaluated, such as witnessing signatures on legal documents – could your witness be with you in AR-form?[36] SCOTUS Justice Scalia has opined;

As we made clear in Craig […]  a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence – which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

In addition to this, accident recreation could be transformed from a “cartoonish, 2-D animation,” to a realistic experience for jurors wearing AR-glasses in a courtroom who are “made to feel as if they are inside the doomed vehicle.”[37] Brian Wassom, writing on these phenomena, points to potential difficulties for litigators in “v-discovery” as the standards of proof may change to require certain amounts of data regarding these virtual AR assets.[38] In addition to recreations, AR may be significant as courtroom evidence, a pre-cursor case to which might be that of Chris Bucchere, who was involved in a fatal cycling accident, in which evidence of speed and recklessness was presented based on data from his ‘Strava’ account – an app cyclists use to track their journeys.[39] Widespread adoption of AR-headsets (with recording abilities) could lead to a plethora of evidential data not seen in courts today; “Fallible and biased memories would be replaced by far more reliable documentation.”[40] The development would be similar to the phenomenon of Russian drivers installing automobile dash-cams[41] as it “… is the only real way to substantiate your claims in the court of law”.[42]

As with any attempt to bring technology into the workplace, significant barriers might arise to the ‘effective’ us of these technologies in a courtroom. Frederic Lederer writes of the difficulties of a technology-augmented courtroom. Like anything, at times the technology will simply not work, even when hit with a hammer;[43] more importantly, at other times the court clerks or lawyers might be insufficiently tech-savvy to work the necessary equipment, which raises the question of whether this might create new professional duties for lawyers to be competent in the relevant judicial technologies.[44]

Contract and Consumer Law Implications

Moving now into the commercial sphere we encounter the use of AR by businesses and consumers and the impact this can have on contract law. Scott R Peppet of the University of Colorado has written in depth on these implications,[45] drawing attention to the need to balance the increased level of manipulation and coercion in advertising available to the vendor with the increased ability of the consumer to compare prices and product reviews[46] – calling into question the justifications for distrusting consumer contracts, which he finds strengthens traditional freedom of contract and should promote enforcing contracts as written.[47] The dangers here are that a business will have too much power to know their consumer and tailor ads to take away ‘choice’, which is an easy assumption to make when companies like Amazon, Facebook and Google already know a great deal about our shopping and browsing habits.[48] In Williams v Walker-Thomas[49] the DC Circuit Court held that a contract was unconscionable if there was “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favourable to the other party.”[50] Similarly in Europe, there are even clearer rules in place regarding incorporating terms which are unreasonably detrimental to the consumer into a contract, such as Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts.

There is the counter-argument that the consumer is now better protected with more information on sellers and products.[51]Pissedconsumer.comis an example of a website which allows consumer to review products and vendors, which had its own smartphone application, which is no longer available.[52] Financial company deVere unsuccessfully took a case against Pissedconsumer.com trying to block “the misinformation contained on such sites”[53] in July 2011. TripAdvisor also have a smartphone app which can be used to give enhanced information and consumer ratings of a business and have run into legal trouble regarding negative reviews.[54] Such issues will only become more acute with the advent of AR consumer apps, in which the company in question need only be viewed through AR or triggered by physical location[55] to immediately bring up these reviews and comparisons with similar companies.[56] Peppet also mentions QR codes for explaining and expanding on contract terms, however there is little difference here legally to providing a hyperlink; it is possibly even less helpful if not everyone has AR access.[57] Peppet’s conclusion is that;

(1) the contours of what we consider freedom of contract are fundamentally shaped by the availability of information, and (2) the availability and structure of information in the economy is not a constant but is instead dependent on the state of evolution of the economy‘s information architecture.[58]

Nonetheless, it is unlikely that we need no longer distrust standard form contracts because of this – not everyone will have such information and businesses are more than capable of using ‘consumer-friendly’ AR to their own benefit (such as paying for or spamming good reviews, which currently happens on android and iPhone app markets).[59] Despite the fact that;

[t]oday, however, we live in a connected digital world. The doctrines born out of judicial distrust for standard form contracts were created before computers, the Internet, or wireless technologies—before consumers had constant real-time access to information about the places, goods, people, firms, and contracts around them,[60]

it seems likely that the power balance between consumers and vendors will remain in a state of flux and contention.

Terra Augmentata

Certain areas of public policy and regulation can surely also benefit from integration of AR technology. The ability to overlay 3D models and simulations to landscapes when viewed through a screen or HMD would allow for much more cost-effective planning when it comes to land rezoning, construction, environmental impact analysis and archaeological investigation. AR can be used to check for obstructions of views and skylines and to preserve landscapes, historical buildings and natural scenery. One Japanese study found the use of AR, instead of 3D-CAD and VR-software, could significantly save on time and cost in regulating building height.[61] It could well be that applications for planning permission or rezoning will soon be accompanied by AR representations of the plans,[62] an image of the land with 3D overlays of the proposed structure and integrated information, etc,[63] – simultaneously more informative and cheaper than many current CAD and VR models.

These ideas are of course tied very much into environmental impact; Visual Impact Analyses (VIAs) are part of Environmental Impact Assessments (EIAs) –  investigations into possible impacts resulting from proposed developments. “The VIA is defined as a change in the appearance of the landscape as a result of potential development.”[64] Regards environmental policymaking, these technologies can be put to other uses such as tracking the spread of weeds,[65] pests, weather patterns[66] or disease. This ability to project structures onto landscapes has obvious applications elsewhere and the Channel 4 show ‘Time Team’ have used a precursor to this in displaying what a historic site may have looked like;[67] while this can certainly be utilised for educational purposes it may well too have an impact on the scope and likelihood of a protection order over historic structures or sites.[68]

Lawsuits and Liability

As with Google Maps, iOS Maps and numerous sat nav technologies, there will be inevitable errors in the presentation of information by AR technologies; human error, software glitches, crashes and even the risk of these technologies being hacked or hijacked.[69] This will be especially noticeable in the context of automobile-based windshield AR technologies, which might well function like current onboard computers and sat navs.[70] A number of cases present themselves every year regarding the use of these technologies while driving leading to accidents,[71] which will likely be an issue for AR in automobiles. It will of course also have to be decided by various jurisdictions whether or not these technologies can be used while driving. It seems likely they will be allowed, as sat navs currently are, but the obstructive and distracting nature of windshield AR displays could make them a danger, and be prohibited much in the way mobile phones (without a hands-free set) currently are.[72] There may even be need for similar laws governing pedestrians,[73] as AR-HMDs in particular could be a serious risk to pedestrians crossing the road, etc.[74]

One paper on “Route guidance by a car navigation system based on augmented reality”[75] analyses the use of AR to tackle some of the dangers of driverless cars and sat navs. AR technology can, and likely will, also be used in automobile modelling, design and sale.[76] “AR Toolkit enables the user to browse the virtual car naturally, by turning or moving the virtual car according to the user’s viewing direction.”[77] Traffic offences and regulation of the automobile industry will need to adapt to decide on the legality and safety of certain aspects of AR in driving. These issues will likely be reflected in the actions of the insurance industry;[78] from some thinking certain such innovations might be a benefit, to others thinking they might be a risk and refusing cover or adjusting premiums accordingly, in addition to the complications this will bring to courtrooms in claims for damage resulting from car accidents as well as for similar criminal cases.[79]

Another area which is likely to test the liability of AR technology is that of medicine, both for diagnostic consumer apps,[80] as well as for assisting Health Care Professionals (HCPs) in diagnosis, treatment and surgery.[81] One consumer app has had success in utilising AR to detect skin cancer,[82] though this could cause issues regarding liability and authorisation to give medical advice for app developers.[83] Technologies used to aid in surgery could increase surgeon precision but be legally problematic if there was a malfunction or inaccuracy of some form.[84]

People and Things: Commercial and Societal Impacts

Privacy

In July 2011, privacy economist Allessandro Acquisti demonstrated a prototype iPhone app that could take a photograph of a person, compare it to the masses of public Facebook profile pictures, guess the person’s name and the first five digits of their Social Security number,[85] with a rather terrifying 30% success rate.[86]The privacy implications of these kinds of technology are clear, huge amounts of personal data can be immediately accessed about a person on viewing their name of picture, eliminating anonymity from many day to day interactions.[87] Jamais Cascio points out that AR technology could instantaneously link people to political affiliations.[88] In many ways though, this is no more than an extension of existing technology – most of these things can already be done with access to a laptop – perhaps the difference is the more seamless, every-day integration of this technology and the integration of facial-recognition software that makes this a step above what has come before. Some argue that such an ability to instantly know those around you indicates a return to a form of online “village” social structure, which might indeed have its benefits as well as disadvantages.[89] How much information is too much? Privacy concerns regarding criminal databases have been mentioned above and this area is inextricable linked to defamation and the uses of such private data in advertising, which will be discussed below.

The ‘Mad Men’ of AR

In the same way that many of the biggest privacy concerns of late come not from over-paternalistic or authoritarian states but rather from commercial interests and the advent of huge amounts of data being aggregated by the likes of Google and Facebook, it is likely that some of the greatest (or most visible) privacy concerns regarding AR will be about further integration of every bit of technology available in the quest for targeted advertising. Peppet makes the point that E-commerce is only 7% of the market, whereas AR could paste itself over the remaining 93%,[90] by adding layers of information to almost every commercial transaction we engage in.[91] This is especially controversial when an AR advertisement is pasted over a physical one,[92] as currently seen with “digital billboard replacement” for televised sporting events.[93]

Major cases in both the US and Europe have dealt with the issues of keyword advertising and how it applies to trademark law, with differing opinions abounding. In Europe, the Interflora[94]case dealt with an action by a trademark holder to prevent a supermarket chain from using their trademarked name as a ‘keyword’[95] for the purpose of Google’s AdWords advertising service.[96] The ECJ held that Directive 89/104 art.5(1)(a) and Regulation 40/94 art.9(1)(a) had to be interpreted as meaning that the proprietor of a trade mark was entitled to prevent a competitor from advertising, on the basis of a keyword identical to the mark and which had been selected in an internet referencing service by the competitor without the proprietor’s consent, goods or services identical to those for which the mark was registered where that use was liable to have an adverse effect on one of the functions of the mark. It applied Google France Sarl v Louis Vuitton Malletier SA (C-236/08) [2011] Bus LR 1 and Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmuller GmbH v Guni (C-278/08) [2010] ETMR, 33. It went on to clarify that such use only adversely affected the mark’s function of indicating origin where it might cause confusion as to the origin of the goods.

Obviously this could have AR parallels with key-words or ‘key-images’ triggering competing advertisements; based on Interflora it is most likely that such use will only be preventable if the trademark-holder can satisfy the national courts that there is some extra element of (possible) confusion, unfair dealing or diminishment of their trademark.  The Google France[97] case made it clear that the search engine who provides such an advertising method will not be liable as having ‘used’ the trademarks in a prohibited manner. In the US, the legality of this practice, and the potential liability of the search engines is unclear,[98] Rosetta Stone v Google[99] on April 9, 2012, indicating the possibility that Google’s keyword policy could amount to direct infringement, contributory infringement, or trademark dilution.[100]

Initially, much AR advertising will undoubtedly be undertaken by the business themselves,[101] seeking to display extra information or content when their packaging is scanned, examples of which are already seen in the prevalence of QR codes.[102] The next likely area of contention might be businesses seeking to stop ratings websites from associating bad ratings with their products, based on those same QR codes, trademarks or image recognition.[103] Then there will be inevitable instances of AR being used to portray a product negatively, much in the way large companies like Coco-Cola or McDonalds are attacked for their business practices now.[104] An anti-corporate app might show links to scandals and controversial business practices when the product or trademark of one of these companies is viewed through an AR device.[105] Likewise, competitors will certainly use similar tactics to divert business to themselves or to denigrate the other business’s products, with implications for both trademark infringement and defamation.  It will need to be decided whether  or not such use of trademarked words, packaging or designs to trigger AR pop-ups is ‘use’ in a trademark sense and then whether or not it causes confusion, takes unfair advantage of,[106] or denigrates the trademark-holder’s product.

Free Speech and Reputations

‘Free speech’ will undoubtedly be a major issue at hand in many of the future US cases regarding individuals’ uses of AR technology for self-expression or criticism.[107] This will be seen in Europe under ‘freedom of expression’,[108] which might hold less sway than the powerful free speech arguments possible in the US.[109] Much of the freedom in Europe might well stem from the above-mentioned chance of AR-linkage not being deemed ‘use’. Issues of libel, malicious falsehood[110] and defamation will be interestingly dealt with depending on a number of factors that might be decided by courts and legislatures. Will AR be accepted as a platform for ‘journalism’, with things being said for the public good?[111] In the UK in particular, Twitter has raised many of these issues, and freedom of expression has not been a particularly strong argument so far – we might well see injunctions and defamation cases being pursued over comments made about particular people.[112]

How ‘public’ will an AR-association be, especially if the technologies remain disparate and with a number of different software programs which might show different layers or types of information? If many people were using a ‘Twitt-AR’ app with their AR-glasses and saw your tweet about Bono when they scanned a picture of him or saw him passing on the street, has that comment been made public? Most certainly. What if the app has a much smaller audience, the ‘U2-Are-Secretly-Lizard-People’ application might only reveal context-specific conspiracies when a significantly smaller user-base see a member of U2 – how seriously would a defamation case be taken then? Tim Berners-Lee, ‘the father of the Internet’, stated in 1997:

The ability to refer to a document (or a person or anything else) is in general a fundamental right of free speech to the same extent that speech is free. Making the reference with a hypertext link is more efficient but changes nothing else.[113]

Much of the argumentation about the ‘right-to-hyperlink’ can be transposed onto issues of a ‘freedom-to-augment-reality’. Further dangers to free speech might stem from current UK changes to defamation law forcing websites to identify ‘defamatory’ posters;

The UK  government is in the process of changing Britain’s defamation laws in a way that will force websites to identify people who have posted defamatory messages online, making it easier and less costly for people to sue their attackers.  The proposed changes would apply to all websites, but the person seeking to sue would need to demonstrate why the case would have to be brought in the UK. [114]

Conclusion

Wassom points out that many pioneering AR legal clashes are already taking place – there have been patent disputes, liability issues, privacy concerns – though not always at the rate predicted.[115] It will continue to be difficult for the law and policy to pre-empt the direction this technology takes, but contemplation of these developments is nonetheless important if legal frameworks are to be ready to adapt to the major and minor changes this technology could bring. In some cases, like that of free speech and hyperlinking, or privacy, analogies with current frameworks might suffice; in other cases, such as windshield-HUDS or ‘key-image’ advertising, it may be that the courts and legislatures have to come up with innovative new ways to deal with these developments.

 

~ Shane

 


[1] This term was coined (and registered as a US trademark – nr. 85333177) by Brian Wassom, Michigan lawyer and AR law expert with his own augmented reality blog, the legal section of which is entitled ‘Augmented legality’. I use this term with Mr Wassom’s blessing and thank him for his invaluable contribution to an otherwise-difficult-to-research field. The blog can be found here; http://www.wassom.com/category/augmented-reality

[2] H Papagiannis, “Augmented Reality and the Power of Imagination”, at TEDx Dubai 2011, talk can be viewed here; http://youtu.be/7QrB4cYxjmk

[3] B Furht, Handbook Of Augmented Reality, (2011), Springer,New York, para 1, ‘Introduction’.

[4] Think ‘Terminator vision’, where more information can be displayed about what you’re looking at, as seen here; http://youtu.be/q35OdlftXQE, or ‘floating menus’ as seen in Google Glass (http://www.google.com/glass/start/how-it-feels/)  or this parody of the computer game Skyrim; http://youtu.be/ALbQQzePzt4. See also; S Theuma, “‘Terminator vision’ coming to our smartphones”, (20 Sep 2012), The Times of Malta, available at; http://www.timesofmalta.com/articles/view/20120920/technology/-Terminator-vision-coming-to-our-smartphones.437710

[5] See http://en.wikipedia.org/wiki/Chroma_key . See also the AR weather app ‘Weather Reality’ by Digital Cyclone Inc.; https://play.google.com/store/apps/details?id=com.dci.mycast.ar&hl=en

[6] R Lawler, “CNN uses augmented reality, iPads to cover midterm election results”, (2 Nov 2010), EnGadget.com, available at; http://www.engadget.com/2010/11/02/cnn-uses-augmented-reality-ipads-to-cover-midterm-election-resu/

[7] D Hardawar, “The magic moment: Smartphones now half of all U.S. mobiles”, (29 Mar 2012), Venture Beat, available at; http://venturebeat.com/2012/03/29/the-magic-moment-smartphones-now-half-of-all-u-s-mobiles/

[8] Nielsen, “Generation App, 62% of Mobile Users 25-34 Own Smartphones”, (3 Nov 2011), available at; http://www.nielsen.com/us/en/newswire/2011/generation-app-62-of-mobile-users-25-34-own-smartphones.html

[9] Google, “Our Mobile Planet: United States. Understanding the Mobile Consumer”, (May 2012), report available at; http://services.google.com/fh/files/blogs/our_mobile_planet_us_en.pdf

[10] See L Mazin, “Smartphone Market 2012-2013 [Infographic]”, AYTM Research Junction, available at;  http://aytm.com/blog/research-junction/smartphone-market-2012-2013-infographic/

[11] See the European Travel Commission’s New Media Trend Watch report here; http://www.newmediatrendwatch.com/regional-overview/103-europe?start=4

[12] J D Hidary,” Smartphones: China’s next great economic indicator”, (14 Jan 2013), CNN Money, Fortune, available at; http://tech.fortune.cnn.com/2013/01/14/smartphones-chinas-next-great-economic-indicator/

[13] Digby, “Industry Statistics: Mobile Commerce and Engagement Stats”, available at; http://www.digby.com/mobile-statistics/

[14] J B Gotow et al, “Addressing Challenges with Augmented Reality Applications on Smartphones”, (2010), Mobile Wireless Middleware, Operating Systems, and Applications: Lecture Notes of the Institute for Computer Sciences, Social Informatics and Telecommunications Engineering, Vol 48, 129-143. See also R Metz, “Augmented Reality Is Finally Getting Real”, (2 Aug 2012), Technology Review, available at http://www.technologyreview.com/news/428654/augmented-reality-is-finally-getting-real/

[15] See supra note 4.

[16] See the development of ‘Meta’ for a particularly gesture- and overlay-integrated AR experience; http://www.meta-view.com/

[17] J Rampolla, “Newest Concept of Augmented Vision: The Future of Policing”, (26 Feb 2013), Augmented Reality Dirt, available at; http://www.ardirt.com/general-news/newest-concept-of-augmented-vision-the-future-of-policing.html

[18] A video demonstration of which, “Golden-i featuring Police Pro Application by Ikanos Consulting”, can be seen here; http://youtu.be/tpBwRX68fIY

[19] J Rampolla, “8 Powerful Technology Tools To Chase Crooks”, (19 Feb 2013),Augmented Reality Dirt, available at; http://www.ardirt.com/general-news/8-powerful-technology-tools-to-chase-crooks.html

[20] A new York law enforcement officer with the regional computer crimes task force in Northern New Jersey, and avid AR enthusiast. See http://www.ardirt.com/about-the-author

[21]J Rampolla, “Top 5 Reasons Law Enforcement Cannot Ignore Augmented Reality”, (2 Feb 2012),Augmented Reality Dirt, available at; http://www.ardirt.com/general-news/top-5-reasons-law-enforcement-cannot-ignore-augmented-reality.html . For an early example, see; http://bandittrackernortheast.com/

[22] J Aron, “AR goggles make crime scene investigation a desk job”, (31 Jan 2012), New Scientist, Magazine Issue 2849, available at; http://www.newscientist.com/article/mg21328495.700-ar-goggles-make-crime-scene-investigation-a-desk-job.html

[23] See “Pink Visual’s Augmented Reality iPhone Porn” demonstration at; http://youtu.be/5GXuS1N1SSM

[24] W Williams, “Layar brings Playboy to life on your smartphone”, (Feb 2013), BetaNews, available at; http://betanews.com/2013/02/06/layar-brings-playboy-to-life-on-your-smartphone/

[25] Supra note 21.

[26] Antoine Dodson’s Sex Offender Tracker, see http://gizmodo.com/sex-offender-tracker/ and http://www.sexoffendertrackerapp.com/

[27] ‘Heads Up Displays’.

[28] The Defense Advanced Research Projects Agency (DARPA) was established in 1958 to prevent technological strategic surprise from negatively impacting US national security and maintaining the technological superiority of the US military. See http://www.darpa.mil/our_work/

[29] Soldier Centric Imaging via Computational Cameras

[30] DARPA, “DARPA Researchers Design Eye-Enhancing Virtual Reality Contact Lenses”, (31 Jan 2012), DARPA Press Release, available at; http://www.darpa.mil/NewsEvents/Releases/2012/01/31.aspx . See also C Dillow, “DARPA Invests In Megapixel Augmented-Reality Contact Lenses “, (1 Feb 2012), PopSci, available at; http://www.popsci.com/technology/article/2012-02/video-nano-enhanced-contact-lens-makes-augmented-reality-more-realistic

[31] See the product’s website; http://www.liteye.com/product/displays-hmds

[32] DefenseTalk, “Augmented Reality in the Battlefield 2012-2016”, (3 Oct 2012), DefenseTalk, available at; http://www.defencetalk.com/augmented-reality-in-the-battlefield-2012-2016-44902/

[33] B Y Ho and H S Poong, “Heuristic guidelines and experimental evaluation of effective augmented-reality based instructions for maintenance in nuclear power plants”, (Dec 2012), Nuclear Engineering and Design, Vol 240(12) , 4096–4102.

[34] F I Lederer, “Road to the Virtual Courtroom-a Consideration of Today’s–And Tomorrow’s–High-Technology Courtrooms, The”, (1998), SCL Rev, Vol 50, 799.

[35] R Sood, Pro Android Augmented Reality, (2012), APress, Ch 1: Applications of Augmented Reality, at 11.

[36]  Though Justice Scalia has opined; “As we made clear in Craig, supra, 846-847,  a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence – which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.” Amendments to  Rule 26(b) of the Federal Rules of Criminal Procedure, at 2, available at; http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/CR-26b.pdf . See also United States v Yates, 391 F.3d 1182 (11th Cir. 2004), regarding the finding that remote testimony from Australia violated the Confrontation Clause.

[37] B Wassom, “The Coming Conundra: Real Laws in an Augmented Reality”, (22 Mar 2011), Augmented Legality Blog, (originally published in 2011 Winter Edition of SideBAR, the newsletter of the Federal Bar Association’s Litigation Section), available at; http://www.wassom.com/the-coming-conundra-real-laws-in-an-augmented-reality.html

[38] Ibid, see also The More Things Change, a short story by Wassom, available at; http://www.honigman.com/files/Uploads/Documents/Wassom/the%20more%20things%20change.pdf

[39] K Hill, “Google Glass Will Be Incredible For The Courtroom”, (15 Mar 2013), Forbes Tech, available at;

http://www.forbes.com/sites/kashmirhill/2013/03/15/google-glass-will-be-incredible-for-the-courtroom/

[40] Ibid.

[41] B Plumer, “What not to do if you’re driving in Russia”, (5 Dec 2012), The Washington Post Wonkblog, available at; http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/05/what-not-to-do-if-youre-driving-in-russia/

[42] M Galperina, “Dash-cams: Russia’s Last Hope for Civility and Survival on the Road”, (13 Jun 2012), Animal, available at;http://www.animalnewyork.com/2012/russian-dashcam/

[43]Percussive Maintenance (The fine art of whacking an electronic device to get it to work again.)”, from J Levitt, Complete Guide to Preventive and Predictive Maintenance, (2003), Industrial Press Inc, at ix; “Usage of Terms”.

[44] F I Lederer, “Technology-Augmented Courtrooms: Progress Amid a Few Complications, or the Problematic Interrelationship Between Court and Counsel”, (2005), William and Mary law School Faculty Publications, paper 56, available at; http://scholarship.law.wm.edu/facpubs/56

[45] S R Peppet, “Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts”, (29 Aug 2011), UCLA Law Review 2012 , U of Colorado Law Legal Studies Research Paper No. 11-14.

[46] Ibid, at 9; “(i) consumers can more easily sort firms and firms‘ contracts using proxies of contract quality such as consumer reviews, thereby bypassing firms with oppressive or one-sided contract terms (and creating market pressure on such firms to reform their contracts); and (ii) firms with consumer-friendly contracts can more easily signal this to consumers, thereby creating pressure on other firms to improve their contract terms. When consumers have mobile Internet applications that search over 40 million consumer reviews on over 4 million products from the aggregated web sites of over one thousand retailers and consumer review services—as they do today using the SearchReviews mobile app”, suggesting that firms are less likely than in the past to use one-sided or oppressive contract terms.

See also http://searchreviews.com/

[47] Ibid, at 42.

[48] R Empson, “Disconnect: Ex-Googlers Raise Funding To Stop Google, Facebook & More From Tracking Your Data”, (22 Mar 2012), Tech Crunch, available at; http://techcrunch.com/2012/03/22/disconnect-me-raise/

[49] Williams v Walker-Thomas Furniture Co, 350 F.2d 445 (C.A. D.C. 1965).

[50] Ibid, at 449. See also A A Leff, “Unconscionability and the Code – The Emperor‟s New Clause”, (1967), U Pa L  Rev, Vol 115, 485, at 550 .

[51] Supra note 45, at 22; “Various web sites allow consumers to share information, including reviews and complaints related to contract terms. For example, pissedconsumer.com, complaintsboard.com, ripoffreport.com, complaints.com, consumeraffairs.com, scamfound.com, and others host thousands of consumer comments about contracting problems.”

[52] Ibid, at 5, fn 24.”A search of PissedConsumer reveals hundreds of reviews regarding credit-related repossessions, like those at issue in Walker-Thomas. See, e.g., http://americredit.pissedconsumer.com”.

[53] H Burggraf, “DeVere v PissedConsumer.com spotlights ‘gripe site’ phenomenon”, (11 Sep 2012), International Adviser, available at;

http://www.international-adviser.com/profiles-and-analysis/analysis/devere-v-pissedconsumercom-spotlights

[54] BBC, “TripAdvisor rebuked over ‘trust’ claims on review site”, (1 Feb 2012), BBC News: Technology, available at; http://www.bbc.co.uk/news/technology-16823012  . See also S Bridge, “TV chef Blumenthal may be latest victim of malicious web users posting fake reviews”, (1 Sep 2012), ThisIsMoney.co.uk, available at;
http://www.thisismoney.co.uk/money/news/article-2196839/Heston-Blumenthal-latest-victim-fake-reviews-Trip-Advisor.html

[55] Based on GPS, WiFi or other sensors.

[56] See, e.g., D J Solove, The Future of Reputation: Gossip, Rumor and Privacy on the Internet, (2007), Yale University Press; P M Schwartz and W M Treanor, “The New Privacy”, (2003), Mich L Rev, Vol 101, 2163, at 2177; J E Cohen, “Examined Lives: Information Privacy and the Subject as Object”, (2000), Stan L Rev, Vol 52, 1373; A M Froomkin, “The Death of Privacy?”, (2000), Stan L Rev, Vol 52, 461.

[57] Supra note 45, at 6, Figure 1.

[58] Ibid, at10 and 54.

[59] A Bunker, “App Store fake reviews: Here’s how they encourage your favourite developers to cheat”, (7 Feb 2012), ElectricPig, available at; http://www.electricpig.co.uk/2012/02/07/app-store-fake-reviews-heres-how-they-encourage-your-favourite-developers-to-cheat/index.html . See also G Biyani, “Cheating the App Store: PR firm has interns post positive reviews for clients”, (22 Aug 2009), TechCrunch, available at; http://techcrunch.com/2009/08/22/cheating-the-app-store-pr-firm-has-interns-post-positive-reviews-for-clients/

[60] Supra note 45, at 54.

[61] N Yabuki, K Miyashita and T Fukuda, “An invisible height evaluation system for building height regulation to preserve good landscapes using augmented reality”, (May 2011), Automation in Construction, Vol 20(3), 228–235.

[62] See T Parker, “Augmented Reality is New Environment For Local Data”, HeadStar E-Government Bulletin; “Several councils have also used the software, supplying Talk About Local with place-specific information such as planning application feeds from Lichfield District Council, while some feeds have been taken from publicly accessible local government datastore, Openly Local. Information from these feeds then appears, in the form of a floating bubble, when a HypARlocal-enabled device is pointed at an area – or nearby – which has entered a planning application.”, available at; http://www.headstar.com/egblive/?p=1235

[63] D Jefferies, “Augmented reality adds a new dimension to planning decisions”, (19 May 2012), The Guardian, available at;

http://www.guardian.co.uk/local-government-network/2012/may/18/augmented-reality-planning-applications. The possibilities have been seriously contemplated in the UK; E Lange, “99 volumes later: We can visualise. Now what?”, (30 Apr 2011), Landscape and Urban Planning,Vol 100, 403-406,

[64] The Macaulay Land Use Research Institute, “Visual Impact Assessment”, (2010), cited in C Hoult, “GIality – Geospatial Data for Augmented Reality”, AGI GeoCommunity ’12: Sharing the Power of Place, available at;http://www.agi.org.uk/storage/GeoCommunity/AGI12/Papers/CrispinHoult.pdf

[65] P Ghadirian , I D Bishop, “Integration of augmented reality and GIS: A new approach to realistic landscape visualisation”, (3 June 2008), Landscape and Urban Planning, Vol 86( 3-4), 226-232,

[66] J Gliet et al, “Image Geo–Mashups: The Example of an Augmented Reality Weather Camera”, (2008), AVI ’08 Proceedings of the working conference on Advanced visual interfaces,  287-294. doi: 10.1145/1385569.1385615

[67] For an example of this see the video at 3:25; http://youtu.be/CsJsnL1kJT8

[68] Like the case of the Mater Hospital ‘spaceship’ design scandal in Dublin, in which visual mock-ups of the proposed structure caused outcry. See C Bohan, “Planning board refuses permission for new National Children’s Hospital”, (23 Feb 2012), TheJournal.ie, available at http://www.thejournal.ie/planning-board-refuses-permission-for-new-national-childrens-hospital-363456-Feb2012/

[69] Such as the anti-BP “the leak in your hometown” app which was created in the aftermath of the BP Deepwater Horizon oil spill, see; http://theleakinyourhometown.wordpress.com/ . Similarly, see E Moyer, “iPad artists adbust with augmented reality”, (14 Dec 2011), CNet, available at; http://news.cnet.com/8301-17938_105-57342719-1/ipad-artists-adbust-with-augmented-reality/

[70] D Dybward, “GM’s Awesome Augmented Reality Windshield [VIDEO]”, (18 Mar 2010), Mashable, available at; http://mashable.com/2010/03/18/gm-ar-windshield/ . See also K Akaho et al, “Route guidance by a car navigation system based on augmented reality”, (2012),  Elect Eng Jpn, Vol 180, 43-54. doi: 10.1002/eej.22278

[71] A Simpson, “Sat Nav blunders ‘have caused up to 300,000 accidents'”, (21 Jul 2008), The Telegraph, available at; http://www.telegraph.co.uk/news/uknews/2438430/Sat-Nav-blunders-have-caused-up-to-300000-accidents.html . See also S Axon, J Speake and K Crawford, “‘At the next junction, turn left’: attitudes towards Sat Nav use”, (June 2012), Area, Vol 44(2), 170-177. doi: 10.1111/j.1475-4762.2012.01086.x

[72] Such as the situation portrayed in the online futuristic series, ‘H+’, “Episode 1: Driving Under”, at 3:30 http://youtu.be/ZedLgAF9aEg and at 4:20; “It’s dangerous and it’s illegal as hell”.

[73] Science Daily, “Almost One in Three Pedestrians ‘Distracted’ by Mobile Devices While Crossing Street; Texting Most Dangerous Distraction”, (12 Dec 2012), Science Daily: Science News, available at; http://www.sciencedaily.com/releases/2012/12/121212205725.htm

[74] Similar to current moves against texting while walking, see E Longnecker, “Cities consider laws banning texting and walking”, (15 May 2012), WTHR.com, available at; http://www.wthr.com/story/18403886/cities-consider-laws-banning-texting-and-walking . Using AR-glasses or a mobile device could be even more distracting and dangerous.

[75] K Akaho et al, “Route guidance by a car navigation system based on augmented reality”, (2012),  Elect Eng Jpn, Vol 180, 43-54. doi: 10.1002/eej.22278

[76] K Chen L Chen and S Shen, “Development and comparison of a full-scale car display and communication system by applying Augmented Reality”, (Jan 2008), Displays, Vol 29(1), 33-40.

[77] Ibid para 3.1

[78] Like the AA’s plan to use sat navs, D Lee, “AA to launch sat-nav tech tracked insurance policy”, (9 Feb 2012), BBC News: Technology, available at; http://www.bbc.co.uk/news/technology-16969509 ; On the point of insurance, apps like this might be of help, T Ozarkar, “CMS ICD app enables you to quickly assess if your patient’s defibrillator will be covered by insurance”, (4 Mar 2013), iMedicalApps, available at; http://www.imedicalapps.com/2013/03/cms-icd-app-patient-defibrilator-insurance/

[79] See http://www.satnavforensics.com/ as well as http://www.cclgroupltd.com/Law-Enforcement/satnav-forensics.html#

[80] http://www.imedicalapps.com/ as mentioned in supra note 78.

[81] A Freudenthal A, et al, “Augmented Reality in Surgery ARIS*ER, Research Training Network for Minimally Invasive Therapy Technologies”, (May 2005), Endoscopic Review, Vol. 10(23), 5-10. For more examples of clinical use of AR see http://medicalaugmentedreality.com/

[82] T Lewis, “Medical app uses augmented reality and camera phone to detect skin cancer”, (10 May 2012), iMedicalApps, available at; http://www.imedicalapps.com/2012/05/medical-app-augmented-reality-camera-skin-cancer/

[83] Similar to legal issues for sites such as WebMD; The first section of their TOS clearly says “This Site Does Not Provide Medical Advice.” The text “WebMD does not provide medical advice, diagnosis or treatment.” is in the footer of every page. Their full TOS is here:  http://www.webmd.com/about-webmd-policies/about-terms-and-conditions-of-use?ss=ftr . Of interest is this section; “The contents of the WebMD Site, such as text, graphics, images, information obtained from WebMD’s licensors, and other material contained on the WebMD Site (“Content”) are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the WebMD Site!

If you think you may have a medical emergency, call your doctor or 911 immediately. WebMD does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by WebMD, WebMD employees, others appearing on the Site at the invitation of WebMD, or other visitors to the Site is solely at your own risk.

The Site may contain health- or medical-related materials that are sexually explicit. If you find these materials offensive, you may not want to use our Site.”

[84] See G Leopold, “Video: Augmented reality coming to surgery”, (18 Sep 2012), EETimes, available at; http://www.eetimes.com/design/medical-design/4396586/Video–Augmented-reality-coming-to-the-surgery

[85] See supra note 45, at 4. Referring to a paper based on A Acquisti, “Privacy in the Age of Augmented Reality”, talk available at; http://youtu.be/Kcz0hUtYVXc  . See also J Angwin, “Face-ID Tools Pose New Risk”, (1 Aug 2011),  Wall St Journal, available at http://online.wsj.com/article/SB10001424053111903341404576480371062384798.html

[86] See “In the Face of Danger: Facial Recognition and the Limits of Privacy Law”, (2007), Harvard L Rev, Vol 120, 1870.

[87] How would you feel if the person pouring your pint in a bar or simply passing you in the street could immediately cross-reference your picture with your Facebook, Google+ and LinkedIn profiles?

[88] J Cascio, “Filtering Reality: How an emerging technology could threaten civility”, (1 Nov 2009), The Atlantic, available at; http://www.theatlantic.com/magazine/archive/2009/11/filtering-reality/307713/

[89] See “Social Media & Privacy: The Return of the Village”, available at; http://uwcisa-assurance.blogspot.co.uk/2013/01/social-media-privacy-return-of-village.html and J Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way we Work and Live, (2011), Simon and Schuster,

[90] SeeG A Fowler, “E-Commerce Growth Slows, But Still Out-Paces Retail”, Wall St Journal, (8 Mar 2010), cited insupra note 45, at 7.

[91] For a terrifying look into the future read and watch Jonathan McIntosh’s ‘ADmented Reality’ parody of the Google Glass trailer; available at  http://www.rebelliouspixels.com/2012/admented-reality-google-glasses-remixed-with-google-ads

[92] J Havens, “Who Owns the Advertising Space in an Augmented Reality World?”, (6 Jun 2011), Mashable, available at

http://mashable.com/2011/06/06/virtual-air-rights-augmented-reality/ as well as S Schroeder, “Real-Time Ads Coming to Google Street View?”, (12 Jun 2010), Mashable, available at http://mashable.com/2010/01/12/real-time-ads-street-view/

[93] Regarding DBR, see M Kukkosuo, “Supponor gets EUR 6M in Series A funding”, (2 Sep 2008), Arctic Startup, available at;

http://www.arcticstartup.com/2008/09/02/supponor-gets-eur-6m-in-series-a-funding

[94] Interflora Inc v Marks & Spencer Plc (Court of Justice, Case C-323/09) [2012] ETMR 1, For a much clearer and more concise discussion than my own please read J Cornthwaite , “Say it with flowers: the judgment of the Court of Justice of the European Union in Interflora v Marks & Spencer”, (2012), EIPR, Vol 34(2), 127-132.

[95] WordStream, “Keyword Advertising: Using Keyword Marketing for Your Business”, WordStream.com, available at; http://www.wordstream.com/keyword-advertising

[96] See paras 64-65, 79-83, 95 (of Interflora, supra 94).

[97] Google France SARL v Louis Vuitton Malletier SA [2010] ETMR 30.

[98] M A Rosso, and B J Jansen, “Brand Names as Keywords in Sponsored Search Advertising” (2010), Communications of the Association for Information Systems, Vol 27(6), available at; http://aisel.aisnet.org/cais/vol27/iss1/6

[99] Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir. 2012).

[100] B Wassom, “Augmented Reality, Keyword Advertising, and Trademarks”, (19 Apr 2012), Augmented Legality Blog, available at; http://www.wassom.com/augmented-reality-keyword-advertising-and-trademarks.html

[101] L Wallace, “Blink-182 Rocks ‘Augmented Reality’ Show in Doritos Bag”, (6 Jun 2009), WIRED, available at; http://www.wired.com/underwire/2009/07/blink-182-rocks-augmented-reality-show-in-doritos-bag/  ; which ran into legal trouble when it was challenged for deceptive marketing, and  the Center for Digital Democracy, through the FTC, attacked the idea of AR itself, not just the idea of marketing junk food to teens, “Dec. 27, 2011 Presentation to ARNY re Doritos AR “Deceptive Marketing” Case”, YouTube presentation viewable here http://youtu.be/Ti9shz2zdjE

[102] J Rouillard, “Contextual QR Codes”, (2008), Computing in the Global Information Technology, 2008. ICCGI ’08. The Third International Multi-Conference on , conference paper, 51-55. doi: 10.1109/ICCGI.2008.25

[103] Supra note 54.

[104] See B C Howard, “15 Hilarious McDonald’s Parodies”, (7 Apr 2009), The Daily Green, available at; http://www.thedailygreen.com/living-green/blogs/recycling-design-technology/funny-mcdonalds-videos-460409

[105] Supra note 69.

[106] The somewhat peculiar addition and phrasing of Article 5(2) of the Trade Mark Directive (No. 89/104/EEC),UK TMA 1994, Article 10(3) and CTM Regulation, Article 9(1)(c), in conjunction with recent case law concerning these sections, in particular the infringement based on taking ‘unfair advantage’ of a well known mark, has led to a situation where the law is unclear in its intended and current actual scope. It is now established in cases such as L’Oréal SA v Bellure NV (C-487/07) that there need be no actual damage for infringement where unfair advantage was taken.  This indicates a significant move away from the basic function of a trade mark as a badge of origin – nor does it seem to protect consumers.  Some greet it as a reasonable extension of protection,whilst others think it has gone too far, (UK CA in L’Oréal SA v Bellure NV [2010] Bus. L.R. 1579,) with many more lamenting that the law is unclear at best; A L Blythe “Attempting to define unfair advantage: an evaluation of the current law in light of the recent European decisions”, (2012), EIPR, 754.

[107] The US Constitution’s First Amendment prohibits laws that “abridg[e] … the freedom of speech, or of the press.”

[108] Article 10 ECHR, provides the right to freedom of expression, including the freedom to hold opinions, and to receive and impart information and ideas – subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society”, which allows for a greater divergence from strict protection of freedom of speech as seen in the US.

[109] B Wassom, “Augmented Reality as Free Speech – A First Amendment Analysis”, (1 Apr 2013),  Augmented Legality Blog, available at; http://www.wassom.com/augmented-reality-as-free-speech-a-first-amendment-analysis.html

[110] Section 3(1) of the UK Defamation Act 1952 reads:

“In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.”

[111] Freedom of the press through new technological media is a touchy issue, see B Solis “Twitter Isn’t Journalism, Or Is It? Perhaps It’s the Wrong Question to Ask”, (18 Feb 2011), BrianSolis.com, available at; http://www.briansolis.com/2011/02/twitter-isn%E2%80%99t-journalism-or-is-it/

[112] For more details of the disturbing trend in twitter defamation cases, see T Whitehead, “Twitter cases ‘threat to freedom of speech’”, (3 Feb 2013), The Telegraph, available at; http://www.telegraph.co.uk/news/uknews/law-and-order/9846043/Twitter-cases-threat-to-freedom-of-speech.html  and J Elgot “Year In Review 2012: What Did Leveson And Twitter Prosecutions Do For Free Speech?”, (27 Dec 2012), Huffington Post, available at; http://www.huffingtonpost.co.uk/2012/12/20/review-2012-free-speech-leveson-twitter_n_2336566.html?just_reloaded=1

[113] Supra note 109,  citing T Berners-Lee, “Links and Law: Myths”, available at; http://www.w3.org/DesignIssues/LinkMyths.html

[114] Supra note 53; “Meantime, the UK  government is in the process of changing Britain’s defamation laws in a way that will force websites to identify people who have posted defamatory messages online, making it easier and less costly for people to sue their attackers.  The proposed changes would apply to all websites, but the person seeking to sue would need to demonstrate why the case would have to be brought in the UK.”. For the details of the Defamation Bill see http://services.parliament.uk/bills/2012-13/defamation.html

[115] For his previous predictions as well as those for 2013, see B Wassom “5 Predictions for Augmented Reality Law in 2013 (And a Look Back at 2012)”, (4 Jan 2013), Augmented Legality Blog, available at; http://www.wassom.com/5-predictions-for-augmented-reality-law-in-2013-and-a-look-back-at-2012.html

Sources:

Books

B Furht, Handbook Of Augmented Reality, (2011), Springer,New York,

D J Solove, The Future of Reputation: Gossip, Rumor and Privacy on the Internet, (2007), Yale University Press,

J Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way we Work and Live, (2011), Simon and Schuster,

J Levitt, Complete Guide to Preventive and Predictive Maintenance, (2003), Industrial Press Inc,

R Sood, Pro Android Augmented Reality, (2012), APress,

Articles

A A Leff, “Unconscionability and the Code – The Emperor‟s New Clause”, (1967), U Pa L  Rev, Vol 115, 485, at 550,

A Freudenthal A, et al, “Augmented Reality in Surgery ARIS*ER, Research Training Network for Minimally Invasive Therapy Technologies”, (May 2005), Endoscopic Review, Vol. 10(23), 5-10,

B Y Ho and H S Poong, “Heuristic guidelines and experimental evaluation of effective augmented-reality based instructions for maintenance in nuclear power plants”, (Dec 2012), Nuclear Engineering and Design, Vol 240(12) , 4096–4102,

E Lange, “99 volumes later: We can visualise. Now what?”, (30 Apr 2011), Landscape and Urban Planning, Vol 100, 403-406,

F I Lederer, “Road to the Virtual Courtroom-a Consideration of Today’s–And Tomorrow’s–High-Technology Courtrooms, The”, (1998), SCL Rev, Vol 50, 799,

Harvard Law Review, “In the Face of Danger: Facial Recognition and the Limits of Privacy Law”, (2007), Harvard L Rev, Vol 120, 1870,

J Aron, “AR goggles make crime scene investigation a desk job”, (31 Jan 2012), New Scientist, Magazine Issue 2849,

J B Gotow et al, “Addressing Challenges with Augmented Reality Applications on Smartphones”, (2010), Mobile Wireless Middleware, Operating Systems, and Applications: Lecture Notes of the Institute for Computer Sciences, Social Informatics and Telecommunications Engineering, Vol 48, 129-143,

J E Cohen, “Examined Lives: Information Privacy and the Subject as Object”, (2000), Stan L Rev, Vol 52, 1373,

J Gliet et al, “Image Geo–Mashups: The Example of an Augmented Reality Weather Camera”, (2008), AVI ’08 Proceedings of the working conference on Advanced visual interfaces,  287-294. doi: 10.1145/1385569.1385615

J Rouillard, “Contextual QR Codes”, (2008), Computing in the Global Information Technology, 2008. ICCGI ’08. The Third International Multi-Conference on , conference paper, 51-55. doi: 10.1109/ICCGI.2008.25

K Akaho et al, “Route guidance by a car navigation system based on augmented reality”, (2012),  Elect Eng Jpn, Vol 180, 43-54. doi: 10.1002/eej.22278

K Chen L Chen and S Shen, “Development and comparison of a full-scale car display and communication system by applying Augmented Reality”, (Jan 2008), Displays, Vol 29(1), 33-40

M A Rosso, and B J Jansen, “Brand Names as Keywords in Sponsored Search Advertising” (2010), Communications of the Association for Information Systems, Vol 27(6),

N Yabuki, K Miyashita and T Fukuda, “An invisible height evaluation system for building height regulation to preserve good landscapes using augmented reality”, (May 2011), Automation in Construction, Vol 20(3), 228–235,

P Ghadirian , I D Bishop, “Integration of augmented reality and GIS: A new approach to realistic landscape visualisation”, (3 June 2008), Landscape and Urban Planning, Vol 86( 3-4), 226-232,

P M Schwartz and W M Treanor, “The New Privacy”, (2003), Mich L Rev, Vol 101, 2163, at 2177,

S Axon, J Speake and K Crawford, “‘At the next junction, turn left’: attitudes towards Sat Nav use”, (June 2012), Area, Vol 44(2), 170-177. doi: 10.1111/j.1475-4762.2012.01086.x

S R Peppet, “Freedom of Contract in an Augmented Reality: The Case of Consumer Contracts”, (29 Aug 2011), UCLA Law Review 2012 , U of Colorado Law Legal Studies Research Paper No. 11-14,

Legislation and Case Law

Community Trade Mark Regulation, Council Regulation (EC) No 40/94 of 20 December 1993,

ECHR,

Trade Mark Directive (No. 89/104/EEC),

UK Defamation Act 1952,

UK Trade Mark Act 1994,

US Constitution,

Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmuller GmbH v Guni (C-278/08) [2010] ETMR, 33,

Interflora Inc v Marks & Spencer Plc (Court of Justice, Case C-323/09) [2012] ETMR 1,

L’Oréal SA v Bellure NV [2010] Bus. L.R. 1579,

L’Oréal SA v Bellure NV (C-487/07),

Google France SARL v Louis Vuitton Malletier SA [2010] ETMR 30,

United States v Yates, 391 F.3d 1182 (11th Cir. 2004),

Williams v Walker-Thomas Furniture Co, 350 F.2d 445 (C.A. D.C. 1965),

News, Websites, Blogs

A Bunker, “App Store fake reviews: Here’s how they encourage your favourite developers to cheat”, (7 Feb 2012), ElectricPig,

A L Blythe “Attempting to define unfair advantage: an evaluation of the current law in light of the recent European decisions”, (2012), EIPR, 754,

A M Froomkin, “The Death of Privacy?”, (2000), Stan L Rev, Vol 52, 461

A Simpson, “Sat Nav blunders ‘have caused up to 300,000 accidents'”, (21 Jul 2008), The Telegraph,

BBC, “TripAdvisor rebuked over ‘trust’ claims on review site”, (1 Feb 2012), BBC News: Technology,

B Plumer, “What not to do if you’re driving in Russia”, (5 Dec 2012), The Washington Post Wonkblog,

B Solis “Twitter Isn’t Journalism, Or Is It? Perhaps It’s the Wrong Question to Ask”, (18 Feb 2011), BrianSolis.com,

B Wassom “5 Predictions for Augmented Reality Law in 2013 (And a Look Back at 2012)”, (4 Jan 2013), Augmented Legality Blog,

B Wassom, “Augmented Reality as Free Speech – A First Amendment Analysis”, (1 Apr 2013),  Augmented Legality Blog,

B Wassom, “Augmented Reality, Keyword Advertising, and Trademarks”, (19 Apr 2012), Augmented Legality Blog,

B Wassom, “The Coming Conundra: Real Laws in an Augmented Reality”, (22 Mar 2011), Augmented Legality Blog,

C Bohan, “Planning board refuses permission for new National Children’s Hospital”, (23 Feb 2012), TheJournal.ie,

C Dillow, “DARPA Invests In Megapixel Augmented-Reality Contact Lenses “, (1 Feb 2012), PopSci,

C Hoult, “GIality – Geospatial Data for Augmented Reality”, AGI GeoCommunity ’12: Sharing the Power of Place,

C Howard, “15 Hilarious McDonald’s Parodies”, (7 Apr 2009), The Daily Green,

DefenseTalk, “Augmented Reality in the Battlefield 2012-2016”, (3 Oct 2012), DefenseTalk,

DARPA, “DARPA Researchers Design Eye-Enhancing Virtual Reality Contact Lenses”, (31 Jan 2012), DARPA Press Release,

D Hardawar, “The magic moment: Smartphones now half of all U.S. mobiles”, (29 Mar 2012), Venture Beat,

Digby, “Industry Statistics: Mobile Commerce and Engagement Stats”

D Jefferies, “Augmented reality adds a new dimension to planning decisions”, (19 May 2012), The Guardian,

D Lee, “AA to launch sat-nav tech tracked insurance policy”, (9 Feb 2012), BBC News: Technology,

E Longnecker, “Cities consider laws banning texting and walking”, (15 May 2012), WTHR.com,

E Moyer, “iPad artists adbust with augmented reality”, (14 Dec 2011), CNet,

G A Fowler, “E-Commerce Growth Slows, But Still Out-Paces Retail”, Wall St Journal

G Biyani, “Cheating the App Store: PR firm has interns post positive reviews for clients”, (22 Aug 2009), TechCrunch,

Google, “Our Mobile Planet: United States. Understanding the Mobile Consumer”, (May 2012),

H Burggraf, “DeVere v PissedConsumer.com spotlights ‘gripe site’ phenomenon”, (11 Sep 2012), International Adviser,

J Angwin, “Face-ID Tools Pose New Risk”, (1 Aug 2011),  Wall St Journal,

J Cascio, “Filtering Reality: How an emerging technology could threaten civility”, (1 Nov 2009), The Atlantic,

J Elgot “Year In Review 2012: What Did Leveson And Twitter Prosecutions Do For Free Speech?”, (27 Dec 2012), Huffington Post,

J Havens, “Who Owns the Advertising Space in an Augmented Reality World?”, (6 Jun 2011), Mashable,

J Rampolla, “8 Powerful Technology Tools To Chase Crooks”, (19 Feb 2013), Augmented Reality Dirt,

J Rampolla, “Newest Concept of Augmented Vision: The Future of Policing”, (26 Feb 2013), Augmented Reality Dirt,

J Rampolla, “Top 5 Reasons Law Enforcement Cannot Ignore Augmented Reality”, (2 Feb 2012), Augmented Reality Dirt,

K Hill, “Google Glass Will Be Incredible For The Courtroom”, (15 Mar 2013), Forbes Tech,

L Mazin, “Smartphone Market 2012-2013 [Infographic]”, AYTM Research Junction,

L Wallace, “Blink-182 Rocks ‘Augmented Reality’ Show in Doritos Bag”, (6 Jun 2009), WIRED,

M Galperina, “Dash-cams: Russia’s Last Hope for Civility and Survival on the Road”, (13 Jun 2012), Animal,

M Kukkosuo, “Supponor gets EUR 6M in Series A funding”, (2 Sep 2008), Arctic Startup,

Nielsen, “Generation App, 62% of Mobile Users 25-34 Own Smartphones”, (3 Nov 2011),

S Bridge, “TV chef Blumenthal may be latest victim of malicious web users posting fake reviews”, (1 Sep 2012), ThisIsMoney.co.uk,

Science Daily, “Almost One in Three Pedestrians ‘Distracted’ by Mobile Devices While Crossing Street; Texting Most Dangerous Distraction”, (12 Dec 2012), Science Daily: Science News,

S Schroeder, “Real-Time Ads Coming to Google Street View?”, (12 Jun 2010), Mashable,

S Theuma, “‘Terminator vision’ coming to our smartphones”, (20 Sep 2012), The Times of Malta,

T Lewis, “Medical app uses augmented reality and camera phone to detect skin cancer”, (10 May 2012), iMedicalApps,

T Ozarkar, “CMS ICD app enables you to quickly assess if your patient’s defibrillator will be covered by insurance”, (4 Mar 2013), iMedicalApps,

T Parker, “Augmented Reality is New Environment For Local Data”, HeadStar E-Government Bulletin,

T Whitehead, “Twitter cases ‘threat to freedom of speech’”, (3 Feb 2013), The Telegraph,

R Empson, “Disconnect: Ex-Googlers Raise Funding To Stop Google, Facebook & More From Tracking Your Data”, (22 Mar 2012), Tech Crunch,

R Lawler, “CNN uses augmented reality, iPads to cover midterm election results”, (2 Nov 2010), EnGadget.com,

R Metz, “Augmented Reality Is Finally Getting Real”, (2 Aug 2012), Technology Review,

WordStream, “Keyword Advertising: Using Keyword Marketing for Your Business”, WordStream.com,

W Williams, “Layar brings Playboy to life on your smartphone”, (Feb 2013), BetaNews,

Videos

A Acquisti, “Privacy in the Age of Augmented Reality”, talk available at; http://youtu.be/Kcz0hUtYVXc

“Dec. 27, 2011 Presentation to ARNY re Doritos AR “Deceptive Marketing” Case”, YouTube presentation viewable here http://youtu.be/Ti9shz2zdjE

D Dybward, “GM’s Awesome Augmented Reality Windshield [VIDEO]”, (18 Mar 2010), Mashable, available at; http://mashable.com/2010/03/18/gm-ar-windshield/

“Golden-i featuring Police Pro Application by Ikanos Consulting”; http://youtu.be/tpBwRX68fIY

G Leopold, “Video: Augmented reality coming to surgery”, (18 Sep 2012), EETimes, available at; http://www.eetimes.com/design/medical-design/4396586/Video–Augmented-reality-coming-to-the-surgery

H Papagiannis, “Augmented Reality and the Power of Imagination”, at TEDx Dubai 2011, talk can be viewed here; http://youtu.be/7QrB4cYxjmk

‘H+’, “Episode 1: Driving Under”, at; http://youtu.be/ZedLgAF9aEg

Jonathan McIntosh ‘ADmented Reality’, available at;  http://www.rebelliouspixels.com/2012/admented-reality-google-glasses-remixed-with-google-ads

“Pink Visual’s Augmented Reality iPhone Porn” demonstration at; http://youtu.be/5GXuS1N1SSM

 

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3 thoughts on “An Introduction to Augmented Reality and the Law”

    1. Hi Benjamin,
      Thanks for your interest in my article, and I really appreciated your article as a more concrete example of how AR could actually practically be put to use in actual cases. The scope of my article was so broad that I didn’t get to go into any specific examples in too much detail, but that was exactly the kind of application which I was suggesting we might see more and more of.

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