UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CANDY LAB, INC.,

Plaintiff,
v.

MILWAUKEE COUNTY, et al,

Defendants,

_____________________________________/

DECLARATION OF ORI INBAR

I, Ori Inbar, hereby declare, upon penalty of perjury, that the following is true and correct

to the best of my knowledge and belief:

1. I am a California resident. I have first-hand knowledge of the facts stated here and

am competent to testify to them if called to do so.

2. I submit this declaration in support of Candy Labs challenge to Milwaukee

Countys ordinance regulating the publication of location-based augmented reality games. I am

gravely concerned that laws like this pose a serious threat to the emerging medium of augmented

reality, which promises to be one of the most important and innovative ways that human beings

will use to communicate with each other in the 21st Century.

My Background in AR

3. I am the President and co-founder of The Augmented Reality Organization (d/b/a

AugmentedReality.Org, or AR.Org), a federally recognized 501(c)(6) nonprofit trade

organization dedicated to the advancement of the augmented reality industry. Every year since

2010, AR.Org has organized the Augmented World Expo (f/k/a the Augmented Reality Event)

(AWE), the largest annual conference dedicated to augmented reality and related technologies

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such as wearable technology, virtual reality (VR), and the internet of things. In recent years,

AR.Org has added AWE events in China and Europe, reflecting the truly global nature of the

industry. AR.Orgs stated mission is to inspire one billion active users of augmented reality by

2020.

4. In January 2015, I authored a market research report published by AR.Org called

the Smart Glasses Market Report 2015. This report, based on my personal research and

experience, defined the scope of the Smart Glasses (or Augmented Reality Glasses) market,

predicted how fast it will ramp up, and which companies are positioned to gain from it. It

forecasted the adoption phases between 2014 and 2023, the drivers and challenges for adoption,

and how hardware and software companies, as well as investors should plan ahead to take part in

the next big computing cycle. The 37-page report sells for $799.

5. In January 2016, I co-founded Super Ventures, the first early-stage incubator and

investment fund dedicated to AR. Super Ventures invests in entrepreneurs developing

technologies that augment the human experience, i.e., AR, VR, and other wearable technologies.

Our leadership team embeds themselves as part of our startups to successfully launch their

products and reach their next funding milestones. The Super Ventures team has met with and

benchmarked over 600 AR companies in the past year alone.

6. During my time at AR.Org and separate from Super Ventures, I have served as a

paid advisor to several AR-related startup companies, including Infinity Augmented Reality, Inc.

(for which I am also a board member), Augary, Sulon Technologies, Inc., and RingU.

7. In January 2008, I co-founded Ogmento, Inc., a developer and publisher of AR

software. I served as this companys CEO until June 2012. Ogmento was later renamed Flyby

Media, and was then acquired by Apple, Inc.

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 8. Between 1994 and 2007, I held software development and product marketing

positions with various companies. I hold a bachelors degree with a double major in Computer

Science and Cinema from Tel Aviv University, and am a 2006 graduate of the INSEAD Global

Leadership Program.

9. In short, I have made it my business for at least the past decade to be as informed

as possible about, and to know as many people as I can within, the global augmented reality

industry.

An Overview of the Augmented Reality Industry

10. According to the dictionary, to augment something means to add to it or

make it greater. Augmented reality refers to the medium in which digital information is

conveyed in a manner that overlays it upon, or otherwise blends with, a persons perception of

their physical surroundings. This creates the illusion that the digital and physical content is

combined. In this way, AR augments a persons perception of physical reality. Although the term

augmented reality can describe the digital enhancement of any physical sense (including

hearing and touch), it is most commonly (in terms of both discussion and the availability of

applications) applied to the sense of sight.

11. It is difficult to overestimate the importance AR in contemporary society, both

now and in the coming years. AR has accurately been called the Eight Mass Medium in human

history, following the mass media of print, recordings, cinema, radio, television, internet, and

mobile devices. It is a platform on which content of any subject matter can be displayed.

12. The medium of augmented reality is not conceptually new. A form of augmented

reality with which many are familiar has been used for decades in sports broadcasting, especially

during television broadcasts of professional football games. The digital lines seen on the

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television screen demarcating the line of scrimmage and first down marker constitute a form of

augmented reality. On the actual football field, there are no yellow or blue lines or statistical

displays extending across the field of play. They are superimposed by the broadcasting

companys technology in a manner that makes the data appear to the viewer as if it is physically

present on the field, as shown below:

13. In more recent years, this method has been used to display even more digital

information on the football field, in other sports such as Olympic swimming, and in political

coverage, as seen in the following images:

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 5

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 14. Augmented reality displays are also commonplace in fiction, and have been for

decades. Indeed, many people still refer to AR as Terminator Vision, after the robot in the

Terminator films through whose eyes audiences see his surroundings together with real-time

digital annotations:

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 15. More recent and robust examples of AR are found in the Iron Man and Avengers

films:

16. In fact, it is now difficult to find a movie depicting life in the near future that does

not include some manner of AR display technology. And when it does appear, it is rarely

emphasized, but instead is merely taken for granted. This, I believe, is because the consensus of

futurists, software developers, and other technologically knowledgeable people is that AR is a

natural and inevitable evolution of present-day and currently-developing social and technological

trends.

17. In an example of life imitating art, even leading inventors have compared their

AR innovations to those depicted in modern films. In 2013, Elon Musk credited Iron Man with

inspiring his solution for designing rocket parts with hand gestures, as shown below:

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Moreover, the artist who designed the AR user interface for the Iron Man films, Jayse Hansen,

was later hired by Meta Company, an AR startup, to help design the displays for the software

used in its AR headsets.

18. Most present-day examples of visual AR are accomplished by displaying digital

imagery on a display that either is, or appears to be (through the use of real-time video),

transparent. Examples of displays that are actually transparent include wearable headsets and

automotive heads-up displays that are projected on windshields or other clear screens. Mobile

devices such as smart phones and tablets typically display content in AR by superimposing

digital imagery on top of a live video feed from the devices front-facing video camera, making

the device itself functionally transparent.

19. In April 2017, Super Ventures published the following AR Landscape, a

graphical representation of the major companies involved in all of the various industries that

make up the complex AR ecosystem:

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 20. According to data collected by Greenlight Insights and reported by Upload,

venture capitalists invested a total of $1.07 billion in AR companies, which is over four times the

total of 2015 investments.1 But the same report also shows that the majority of investments are

small, led by a few very large investments. The spread of large and small investments indicates a

young industry that is anticipated to grow rapidly in coming years.

21. There is no shortage of market studies and projections on where the AR industry

is headed. The details vary slightly between these reports, but the overwhelming consensus is

that AR and related technologies will be a source of enormous revenue in the near future. Digi-

Capital, a tech advisor, believes that the combined market for augmented and virtual reality

could be $108 billion by 2021. My research and experience suggests this to be a realistic

projection.

1
https://uploadvr.com/ar-smashed-funding-records-2016/

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 22. Use cases for AR are already widespread, and are limited only by a developers

imagination. Some of the most compelling use cases to date include:

a. Industrial manufacturing and processes: Employees wearing AR eyewear are

using the devices to visualize data, follow guided work instructions, and receive

visual cues from subject-matter experts in remote locations.

b. Navigation: AR navigational displays (whether on mobile devices, wearable

displays, or windshields) display way-finding data in a three-dimensional,

volumetric manner, so that the display appears to be part of the road or walkway

in front of the viewer instead of a two-dimensional map. This helps reduce

distraction and traffic accidents.

c. Health Care: AR displays have been used to remotely guide the actions of a

surgeon wearing AR eyewear by displaying instructions in the surgeons field of

view. Other wearable AR devices use sensors to enhance the appearance of veins,

allowing phlebotomists to more accurately deliver injections. AR applications

have been used in mental health counseling by exposing patients with phobias to

their fears in a realistic, but safe, manner.

d. Education and Training: The ability to display content in three dimensions

unlocks a new world of teaching methods for educators, especially for students

who are more likely to learn through hands-on applications than through reading

or two-dimensional displays. It also allows workers to learn dangerous or

complicated new skills (such as welding) by performing them in three dimensions

without using up actual physical materials or incurring risk. Moreover, content

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 recorded through an instructors first-person perspective using wearable devices

conveys information in unique ways.

e. Art. Artists have accomplished amazing things in the AR medium, including by

overlaying digital content on physical artworks, by painting huge murals that

trigger AR experiences; by overlaying digital graffiti on public spaces without

physically altering them; by enabling users to create in three dimensions with

virtual brushes, and so much more.

f. Entertainment, Storytelling, and Gaming. As with any expressive medium, some

of the most engaging work being done in AR is that which tells stories and

interacts with the user. AR applications bring print books and artwork to life, and

create immersive fictional worlds that blend with the physical world in new and

creative ways.

g. Political Speech. AR has already proven to be an important medium for poltical

expression around the world. For example, artists like Mark Skwarek and others

created AR mobile applications related to the Occupy Wall Street movement,

including apps that allowed users to virtually protest in areas they could not

physically access, and that displayed political messages when pointed at certain

Wall Street buildings. Skawrek also released The Leak in Your Hometown in

2011, which superimposed a leaky oil pipe onto BP gas station signs as a means

of protesting the Gulf Oil Spill. During the 2012 election, a startup called

GoldRun created a feature called Visualize the Vote that lets users pose for a

picture with their favorite presidential candidate super imposed over the users

physical locationthen share that photo with their friends. Professor BC Biermann

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 and the New York-based Public Ad Campaign launched a project called AR Ad

Takeover, a mobile app that recognized particular print advertisements that were

then prominent across New York City and superimposed the artists own

messages on them.

Mobile Augmented Reality

23. Mobile devices were the first platform on which mass-market consumers had the

opportunity to experience true AR functionality.

24. One of the first mobile AR applications was the Monocle feature in Yelp, the

social networking application dedicated to finding and rating local restaurants and other

businesses. Released in 2009 for use on the iPhone 3GS and still available today, Monocle

displays the names and distances of local restaurants in an AR view, fixed in space and

indicating their direction to the user, as shown below:2

2
http://gizmodo.com/5347194/augmented-reality-yelp-will-murder-all-other-iphone-restaurant-apps-my-health

12

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 25. 2010 was a watershed year for mobile AR. The release of the iPhone 4 that year

meant that consumers finally had enough processing power in their devices to make various

types of AR applications feasible. A corresponding rise in mobile AR applications, and in

companies dedicated to developing them, soon followed.

26. Mobile devices are still the most popular platform for mass-market AR. A report

issued in May 2016 by Research and Markets projected the mobile augmented reality market to

reach $79.77 billion by 2022. The major reasons cited for the growth of the mobile augmented

reality technology was the increasing use of smartphones and tablets, adoption of advanced

technologies, and implementation of software applications in mobile computing.3 My research

and experience suggests this to be a realistic projection.

27. Apple has made no secret about its enthusiasm for, and plans to lead in, AR. Over

the past several years, Apple has purchased several AR companies, including, in 2015, the

German company Metaio, which at the time was one of the leading companies in the AR field. In

2010, Metaio published one of the first AR first-person shooter mobile games, called Zombie

ShootAR. In 2014, it published an innovative location-based mobile application called

Timetraveler, which allowed users standing in the location of the former Berlin Wall in

Germany to visualize, in context, what the wall used to look like:

3
See http://www.researchandmarkets.com/research/d6pv7h/mobile_augmented .
13

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Mobile Location-Based and Augmented Reality Gaming

28. Mobile AR games are nothing new. The degree of AR functionality and the nature

of the game mechanics vary between applications.

29. The simplest version of mobile AR game is one that uses a devices video camera

to locate a pre-determined physical image, or marker, and then superimposes a digital image

on top of the video display of that marker. Shown below is an example of this type of game on

the Nintendo 3DS handheld gaming device, which began offering these types of games circa

2011:

14

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 30. Other games trigger on-screen gaming options after recognizing a physical

marker, or a three-dimensional object (sometimes called markerless object recognition).

31. Still other mobile games are location-based. As I use and understand this term,

location-based mobile games are those that display digital content in reaction to a devices

proximity to specified geographic locations.

32. Not all location-based games are augmented reality games. The two terms

describe different things. Dozens of games available on the market are location-basedin that

they require a user to be physically present in certain geolocations in order to take certain actions

or interact with certain contentbut are not AR games, because they display their content

entirely in a two-dimensional fashion. Popular examples of such games include TurfWars (a

mobster-themed game) and QONQR (a science-fiction game), two GPS-based, multiplayer

role-playing games in which players compete with each other to control real-world territory

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and build the strength of their respective organizations, each in the course of playing out a

fictional storyline.

33. Similarly, not all AR games are location-based in the sense that they rely on

GPS or other sensors to determine a users real-time physical location and incorporate it into the

gameplay, as the term location-based game typically indicates. Instead, an AR game may

superimpose the same digital content on a devices surroundings regardless of where the device

is.

34. Therefore, I use the term location-based augmented reality game to mean a

mobile game that both incorporates the users real-time physical location into the gameplay, and

that displays content in an AR format. I have often heard the term used in the same manner by

others, but I am not aware that the phrase has an officially defined meaning.

35. In a manner of speaking, however, any AR displaywhether meant for gaming or

any other purposeis location-based, and has some relationship to the users physical

location, because AR displays by their very nature are meant to be blended with the users view

of their physical surroundings. With this understanding, even an application that displays the

same digital image regardless of physical location could be said to be location-based, in that the

location and the image blend to form a unique expression.

36. During my time with Ogmento, I helped design and publish several applications

that fit my use of the term location-based augmented reality games. Examples include:

a. In 2010, I helped create the Dos Equis Ring Toss, a mobile game that used

the devices video camera to recognize a bottle of Dos Equis beer, and allowed

users to toss digital rings at the bottles. Depending on the accuracy of the

16

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 toss, the game would show the ring either missing or landing on top of and

encircling the bottle:

b. In 2011, I helped create NBA: King of the Court, in which players at designated

physical locations can detect the image of a basketball hoop in AR, and interact

with the image to throw basketballs into the hoop and score points. The game

tracked users performance, which could be tracked against others scores, and

high scorers could compete to control certain geographic areas.

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 c. Also in 2011, I helped create Paranormal Activity: Sanctuary, in which players

took on the role of demon hunters chasing after evil spirits. The game spawned

demons from certain geolocations designated as hellholes, and required

players to travel to locations in order to create sanctuaries. The game detected

AR markers created by players, and allowed them to battle demons in three-

dimensional AR:

37. In 2011, a company called Niantic, Inc. (which spun off from Google, Inc.)

released a location-based AR game called Ingress. The gameplay of this application is

materially identical to that found in NBA: King of the Court and Paranormal Activity: Sanctuary,

in that players were required to travel to specified geolocations (game stops) and interact with

digital objects available there in order for their faction to gain control of certain regions on the

real-world map. The game stops in Ingress are called portals, and players competed as

members of one of two factions in service of a science-fiction storyline. Niantic assigned (or

altered) the locations of many of its portals based on feedback from its users. Supported by a

limited but devoted fan base and online discussion groups for players, Ingress became the most

popular mobile AR game up to that point.

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 38. In 2013, Disney released the Disney Magic Mirror mobile application. Like the

Dos Equis Ring Toss, this app recognized a particular physical object regardless of its physical

locationin this case, the Disney Princess Ultimate Dream Castle toyallowing children to

interact with various digital images triggered by different aspects of the toy, as shown below:

39. In 2015, ZenFri, a startup based in Winnipeg, Canada, released the mobile AR

game Clandestine Anomaly. This game is arguably location-based, but in a way that differs

from the prior examples. Instead of being populated with pre-determined game stop locations to

which players must travel in order to interact with digital content, Clandestine Anomaly allows

players to create a gameplay area within a certain radius of their current physical location,

wherever that location may happen to be. (In the language of the games sci-fi storyline, an alien

spaceship crash-lands at a place chosen by the player.) The gameplay then continues, centered on

that location:

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Clandestine Anomaly also features AR, first-person shooting segments in which the player is

tasked with battling robotic aliens that are shown as visible in their physical surroundings

although this aspect of the game is optional.

40. In July 2016, Niantic released the location-based mobile game Pokemon Go.

This game repurposed much of the location data gathered through Ingress, renaming portal

game stops as either Pokestops or Gyms, and creating a loose storyline based on the hugely

popular Pokemon intellectual property. In addition to using fixed game stop locations (as

Ingress, Paranormal Activity: Sanctuary, and other games do), the game spawns Pokemon

creatures at physical locations in proximity to the users location, in a manner randomly

determined by an algorithm. (This aspect of the gameplay is similar to NBA: King of the Court

in that players throw digital objects at these characters in order to catch and collect them.)

The creatures in this aspect of the game can be depicted in either two-dimensional or AR format,

which is why Pokemon Go is often called an AR game, although (as in Clandestine Anomaly)

that display mode is entirely optional. Players can also bring these creatures to gym game stops

to battle them against other players creatures.

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 41. Nothing in Pokemon Gonot the gameplay, its location-based features, or the

optional AR displaywas new or unique in the mobile gaming market. The appeal of these

features, the timing of the release, and the popularity of the Pokemon content, however,

combined in a serendipitous manner to make Pokemon Go a breakout hit. It broke Apple iOS

download records, reaching 500 million downloads within its first two months alone. Inevitably,

the fad surrounding the game has receded, and the number of people actively playing the game

has reportedly decreased significantly. Nevertheless, it remains popular compared to the average

mobile game. As much as anything else, the extent of this games market penetration is

responsible for introducing the average American to the phrase augmented reality, even though

AR is actually only a small (and optional) portion of the game.

42. Dozens of companies continue plans to develop and expand the available catalog

of location-based and AR games. Some of these are, or soon will be, available for use on AR

headsets such as the Microsoft Hololens, the beta version of which became available to the

public in 2016. Among other applications, Microsoft is known to be developing a number of

games for use with the Hololensincluding its popular Minecraft world-building game. The

following promotional image shows a user interacting with Minecraft objects as if they were

physically present in the room with him, which is the type of experience that AR glasses enable:

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 43. In April 2017, a Hololens game based on the new movie Smurfs: The Lost Village

was released, foreshadowing the use of smart glasses for childrens entertainment:

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 44. In sum, it is fair to say that use of mobile devices for location-based and AR

gaming purposes is here to stay, and that these experiences will only expand in number and

diversity.

Non-Visual Augmented Reality

45. Although the sense of sight gets most of the attention in conversations about AR,

augmented reality also describes the digital enhancement of senses other than the sense of

sighti.e., the senses of hearing, touch, taste, and smell, which are also means by which people

perceive reality. I have become very familiar with companies pioneering these technologies,

many of whom have presented at AWE conferences.

46. For example, providing a sense of touch is very important to creating a feeling of

immersion in a digital world, which is why developers have long been looking for ways to

combine artificial haptic sensations with digital visual imagery. Examples include the following:

a. Since 2011, a Finland-based company called Senseg has advertised its advanced

FeelScreen haptic technology as a new way of creating a sophisticated

sensation of touch. Specifically, it makes use of an electro-sensory phenomenon

that replicates the feeling of touch. As very tiny electrical charges pass into the

tixel elements, the individual tixels generate a controlled electric field which

extends several millimeters above the surface. The resulting effect, according to

the company, is a delicate, dynamic feedback that creates a range of sensations

from vibration patterns and clicks to textures which run from rough to smooth and

from sticky to slippery. Although I am not personally acquainted with Senseg, this

description perfectly fits the definition of haptic AR.

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 b. In 2013, Disney revealed technology it calls Aireal, which uses computer-

controlled jets of air to delivers expressive tactile sensations in mid-air. In its

press release announcing the technology, Disney said: AIREAL is part of our

long term vision for creating large-scale computer augmented environments

which can deliver compelling interactive experiences seamlessly, everywhere and

at any time. Free air tactile feedback technology is a key element of these future

interactive spaces with a wide range of applications including gaming and

storytelling, mobile interfaces, and gesture control among many others.4

c. Several companies are actively developing gloves designed to add physical

sensations to visual AR and VR imagery.

d. In March 2017, it was reported that scientists had made progress in developing

electronic skin, allowing for prosthetic limbs with a sense of touch.5

47. Similarly, many companies are actively developing what may be called

augmented sound technology, which creates the illusion of an artificial environment with

sound instead of (or in combination with) visual imagery. For example:

a. Inception is a mobile application that has been exhibited at AWE. It uses what

it calls augmented sound to induce dream-like sound sequences through the

headphones of an iOS device. The application consists of several different

soundscapes that are triggered when certain conditions apply. The conditions are

not known beforehand, creating a game-like component where users attempt to

find and initiate new sequences.6

4
https://www.disneyresearch.com/project/aireal/
5
https://ca.news.yahoo.com/scientists-graphene-power-electronic-skin-feel-060434878.html
6
https://itunes.apple.com/us/app/inception-the-app/id405235483?mt=8

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 b. In 2016, Doppler Labs introduced a device called Here Active Listening, which

consists of a pair of in-ear headphones combined with a mobile application. In

another example of life imitating art, the Here device is remarkably similar to the

in-ear virtual assistant software that was the subject of the 2015 movie Her.

Doppler Labs markets Here as an augmented audio device. In an interview with

TechCrunch published on April 4, 2016, Doppler founder and CEO Noah Kraft

explained the meaning of this term:

Everyone knows at this point what virtual reality is, Kraft says. Youre
essentially creating a secondary world different from the reality youre
living in. You put on some goggles and it allows you to be transported to
something completely different. Now people are starting to also understand
augmented, visual reality like HoloLens or Magic Leap, and that puts a layer
of a filter on the way you experience the real world.

Now audio augmented reality takes that same concept and applies it to your
ears. It allows you to still hear the world but it allows you to filter and curate
how you want to hear, what you want to hear, and what you dont want to
hear.7

The headline to another news article about Here asked: After augmented reality

wins with Pokemon Go, is augmented audio reality next?8

c. In a November 2016 press release entitled Audio: The Key to Truly Immersive

Augmented Reality,9 the audio company Harmanwhich was recently acquired

by Samsung, a noted leader in consumer virtual realityhas likewise advertised

its work on AR headphones that incorporate Smart Audio and enhanced

ambient awareness.

7
https://techcrunch.com/2016/04/04/doppler-here-active-listening/
8
http://www.thenational.ae/business/technology/after-augmented-reality-wins-with-pokemon-go-is-augmented-
audio-reality-next
9
http://news.harman.com/blog/audio:-the-key-to-truly-immersive-augmented-reality

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 d. These examples demonstrate that developers and many in the public have come to

understand that the term augmented reality includes the aural sense.

48. The senses of taste and smell are also being digitally augmented. The leading

researcher in this field is Adrian David Cheok, Professor of Pervasive Computing at City

University of London, and a former board member of AR.Org who has presented at the AWE

conference.

49. There are even companies working to augment human senses beyond the

traditional five. In 2013, for example, the New York Times profiled work by the Los Angeles-

based AR pioneer Daqri in using wearable EEG monitors to turn wearers brain waves into

commands that turn machines on or off or trigger digital content.10

Candy Lab and Texas Rope Em

50. I have been familiar with Candy Lab, Inc. and its co-founder Andrew Couch for

several years. They are a creative and talented company. Their app Cachetown, launched in

2012, was an event-based scavenger hunt that utilized location-based augmented reality to let

users win prizes. It was one of the first applications to include gaming, retail, and advertising

features, and was an excellent early example of the potential of AR to creatively engage users.

51. I am aware that, at the South By Southwest (SXSW) conference Candy Lab

announced the first ever location-based, augmented reality poker game, Texas Rope Em!

(Texas Rope Em). From what I have learned about the game, it appears to incorporate the

time-tested, location-specific game stop and AR display elements found in games like NBA:

King of the Court, Ingress, and Pokemon Go, combined with content inspired by the popular

card game Texas Hold Em. It has the potential to be a popular game.

10
https://bits.blogs.nytimes.com/2013/09/04/thinking-about-the-next-revolution/?_r=3

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The Milwaukee Ordinance

52. Shortly before it was approved by the County Board of Supervisors, I learned of

the existence of Resolution 16-637, which, as I am informed, was passed by the Milwaukee

County Board of Supervisors on February 2, 2017 and published on February 20, 2017 (the

Ordinance, attached as Ex A). It establishes a policy for location-based augmented reality

games in Milwaukee County Parks. The operative portion of the Ordinance reads:

SECTION 1. Section 47.03 of the Milwaukee County Code of General

Ordinances is hereby amended as follows:

(3) Permits required for location-based augmented reality games. Virtual and
location-based augmented reality games are not permitted in Milwaukee County
Parks except in those areas designated with a permit for such use by the Director
of the Department of Parks, Recreation, and Culture (DPRC). Permits shall be
required before any company may introduce a location-based augmented reality
game into the Parks, effective January 1, 2017. The permitting application process
is further described on DPRCs website for companies that create and promote
such games. That process shall include an internal review by the DPRC to
determine the appropriateness of the application based on site selection,
protection of rare flora and fauna, personal safety, and the intensity of game
activities on park lands. Game activity shall only occur during standard park
hours, unless otherwise authorized by the DPRC Director, who has the authority
to designate special events and activities within the Parks outside of the standard
operational hours.

SECTION 2. The provisions of this Ordinance shall become effective upon

passage and publication.

Ex A at 3.

53. The preamble to the Ordinance defines virtual gaming as an activity during

which a person can experience being in a three-dimensional environment and interact with that

environment during a game, and the game typically consists of an artificial world of images and

sounds created by a computer that is affected by the actions of a person who is experiencing it;

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and ... [further provides that] Pokmon Go fits the characteristics defined by virtual gaming and

is considered as such by the standards of the DPRC. Ex A at 2.

54. The Ordinance does not define what it means by the term location-based

augmented reality games, other than to repeatedly imply that Pokemon Go is such a game. As

described above, I certainly have an understanding of what I believe the term to mean, and I

believe that Texas Rope Em is a location-based augmented reality game. I do not, however,

know the parameters of what Milwaukee County understands the term to mean.

The Ordinance Injures Software Developers Such as Candy Lab,

Suppresses the Publication of Mobile Games, and
Threatens the Entire AR Industry

55. The text of the Ordinance is incredibly vague, to the point where it is impossible

for me to discern what it permits and what it regulates. For example:

a. Virtual gaming is defined as an activity during which a person can experience

being in a three-dimensional environment and interact with that environment

during a game. Taken literally, this describes every physical game in which any

person can engage, such as baseball, hopscotch, tag, or even swinging on park

swings. The Ordinance goes on to explain that a virtual game typically consists

of an artificial world of images and sounds created by a computer that is affected

by the actions of a person who is experiencing it, but the word typically

indicates that this description is not a necessary part of the definition. Running

down a sidewalk while wearing an activity tracker such as an Apple Watch or a

wearable device like Google Glass can cause those devices to emit both images

and sounds. Similarly, two children play-fighting with battery-powered Star Wars

lightsabers also experience a three-dimensional environment accompanied by

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 artificial images and sounds. Both of these activities appear to fit the Ordinances

definition of virtual gaming.

b. The term location-based augmented reality game is not defined. As used in this

context:

i. location-based could mean any of the following:

1. Content that is fixed to, and only accessible at, predetermined

geographic coordinates, like the game stops used in AR games like

NBA: King of the Court, Paranormal Activity: Sanctuary, Ingress,

Pokemon GO, and Texas Rope Em, as well as in non-AR games

such as TurfWars and QONQR, and in non-gaming applications

such as Metaios Timetraveler. (As noted above, this is how I use

the term location-based as applied to mobile games, but I am not

aware of any official definition endorsing this meaning.)

2. Content that is triggered by physical objects regardless of where

they are located, such as the Nintendo 3DS, Dos Equis Ring Toss,

and Disney Magic Mirror.

3. Content that is dynamically triggered based on the users proximity

to objects that are not fixed in space, such as another persons

mobile device.

4. Content that is dynamically assigned to specific geographic

locations randomly chosen by an algorithm, such as how digital

creatures are generated in Pokemon Go.

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 5. Content that is assigned to a particular geographic location by a

player, such as in Clandestine Anomaly or in Hololens-based

games.

ii. The term augmented reality is subject to multiple interpretations.

1. Many would argue that even the one example of AR given in the

OrdinancePokemon Gois not really an augmented reality

game, since the AR component of the game is not essential to the

gameplay and can be deactivated. Some people accept the static

overlay of digital content over a live video feed to be AR, while

others use AR to mean digital content that dynamically interacts

with physical surroundings in some way.

2. As detailed above, augmented reality also describes the digital

enhancement of senses other than the sense of sighti.e., the

senses of hearing, touch, taste, smell, and others, which are also

means by which people perceive reality. The Ordinance is entirely

unclear as to whether and how it applies to these applications, or as

to the circumstances under which digital augmentation of these

other senses could be considered location-based.

iii. Game is also undefined. Does it require a defined set of rules? Does it

apply to applications that are purely for gaming purposes and no other, or

does it include applications that add a game-like incentive systemlike

Candy Labs CacheTown, which was described in the press as gamified

advertising, or Googles popular navigation program Waze, which

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 offers users points and badges for doing things like visiting new

locations or reporting traffic incidents? It may also be argued to apply to

Yelps Monocle feature, since Yelp itself allows users to compete with

each other to become the duke or duchess of a particular

establishment.

iv. What degree of location-based augmented reality game function is

required before the game falls under the Ordinance? Would Pokemon Go

or Clandestine Anomaly still be regulated if users disabled their AR

features?

c. What does not permitted in Milwaukee County Parks mean? Does it mean that

individuals are not allowed enter the parks carrying devices that have the game

installed? If so, does that mean developers are responsible for the actions of each

such person (as the Permit Application repeatedly says)? Or does it only mean

that developers cannot publish a game containing content specifically designed to

be playable in the parks?

d. What does before any company may introduce a location-based augmented

reality game into the Parks mean?

i. Game developers do not introduce software into any physical

location, even if the game is designed to be played in particular places.

Rather, developers simply publish the game in app stores for users to

download. Even if certain AR content is designed to be displayed in a

particular geolocation, it does not actually exist in that location; rather, it

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 is merely displayed on a mobile device screen. Therefore, the phrase

introduce ... into the Parks is nonsensical as used in this context.

ii. This sentence of the Ordinance applies only to location-based augmented

reality games and not to virtual games, a term that is defined much

more broadly. To what extent must the developer of a virtual game that is

not a location-based augmented reality game obtain a permit?

e. Who is included within the phrase companies that create and promote such

games? Does it include every business partner that helped Candy Lab create the

content in Texas Rope Em? Does it include Apple and Google, who promote

the game for download in their app stores? Does it include every entity that

speaks favorably about the game in social media? Does it apply to Candy Lab

when it develops white-label applications for other companies? Does it even

apply to nonprofit organizations like AR.Org, which features numerous AR works

at its AWE conferences and works to promote the entire industry? After learning

about the Ordinance and the anti-AR militancy of those who advocated for it, I

am forced to second-guess how far I can safely go in publicly discussing location-

based AR games.

f. What does it mean that Game activity shall only occur during standard park

hours? Does this apply only to players, whose behavior the developer is then

responsible? Or does it purport to require developers to somehow determine park

hours for each location, and then proactively disable the software on every

device on which it has been installed outside of those hours? That is a logistically

prohibitive, and perhaps impossible, requirement to meet.

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 56. The text of the Ordinance requires game publishers to apply for a permit that is

said to be available on the Parks Departments website. It is remarkably difficult, however, for

developers to determine what they are required to do, even if they learn that the Ordinance exists

in the first place (which I do not know how they would unless they hear about it second-hand, as

I did).

57. I have come to learn of the Milwaukee County Parks 2017 Special Event

Application found at <http://county.milwaukee.gov/ImageLibrary/Groups/cntyParks/

permits/SpecialEventPermitApplication.pdf> (the Permit Application). Ex B. This 10-page

document requests a vast amount of information, such as estimated attendance, location in park,

event dates and times, site map, whether and how the event will be advertised, plans for garbage

collection, and provisions for on-site security and medical services. Ex B at 5-9. Much of this

information is either inapplicable, or impossible to accurately assess with respect, to a mobile

application. For example, mobile games like Texas Rope Em do not have dates and times,

but rather are always accessible to a user once downloaded to a mobile device. Nor can a game

developer reliably estimate the number of people who will both download the application and

travel to a specific location (such as Milwaukee County Parks) to play the game. Mobile

application developers certainly do not undertake responsibility, much less plan for, the amount

of garbage removal, security, medical services, or restrooms that players may require.

58. The Permit Application also reserves the right to require additional information

or documentation regarding the applicant, applicants company, sponsoring

company/organization, co-sponsors, event participants, event vendors, event activities or the

event itself. Moreover, Milwaukee County Parks may postpone approval of event permit(s) until

receipt of additional requested information or documentation. Failure to submit requested

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information or documentation in a timely manner may be cause for denial of a Special Event

Permit. (Id. at 2.)

59. It is my perception that Milwaukee County adopted the Ordinance as a knee-jerk

reaction to the unexpectedly large number of people who played Pokemon Go in 2016. Having

read the Whereas clauses contained in the Ordinance, as well as the comments made by

County Supervisor Sheldon Wasserman in the course of proposing the Ordinance, only

reinforces that understanding. This, in turn, leads me to believe that the County will take every

opportunity it can to put hurdles in the way of applicants publishing Texas Rope Em and other

location-based games, including by dragging out the permitting process with requests for

information and by demanding the payment of exorbitant fees.

60. The Permit Application gives a similar definition of virtual gaming as the

Ordinance: An activity during which a person can experience being in a three-dimensional

environment and interact with that environment during a game. The game typically consists of an

artificial world of images and sounds created by a computer that is affected by the actions of

person who is experiencing it. Ex B at 4.

61. Texas Rope Em clearly fits this definition. The augmented reality display of

poker cards that a player sees upon reaching designated coordinates is a three-dimensional

environment, and players interact with that environment during the game. Texas Rope Em

displays an artificial world of images and sounds created by a computer [i.e., by the mobile

application] that is affected by the actions of person who is experiencing it. At the very least,

the user interface of Texas Rope Em fits this definition at least as much as does that of Pokemon

Go, which the Ordinance was designed to regulate.

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 62. Moreover, Texas Rope Em is a location-based augmented reality game, at least

according to my understanding of that term.

63. The County website also instructs that a Permit Application in connection with

virtual games is required for game developers only, and Candy Lab is the developer of

Texas Rope Em.

64. Therefore, I read the Ordinance (especially the portion regulating the

introduction of games into the Parks), and the Permit Application issued pursuant to the

Ordinance, as requiring Candy Lab to submit the Permit Application and receive a Special Event

Permit before being allowed under the Ordinance to publish a version of Texas Rope Em that

allows players to play the game in Milwaukee County Parks.

65. Because Texas Rope Em has already been released to the public in beta form,

and because that version is playable in a Milwaukee County Park, Candy Lab appears to already

be in violation of the Ordinance.

66. Indeed, as I have summarized above, there are dozens, if not hundreds, of mobile

games on the market that may fall within the scope of the Ordinance, some of which have been

available since 2010and some of which I have helped create and publish. From the way

Milwaukee appears to be interpreting its Ordinance, those who have developed, published, or

endorsed any one of these may find themselves subjected to liability.

67. Candy Lab, like the vast majority of companies developing location-based and

AR games, is still a modestly sized startup company reliant on a handful of investors. Companies

like this simply cannot afford to undertake the process of researching the need to, and

undertaking the effort to apply for, permits from municipal governments before publishing the

very mobile applications that are the source of the companys revenue. Nor can it afford to pay

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any permitting fees, much less the exorbitant fees contemplated by Milwaukees Permit

Application, to even one municipality, let alone all the others that will follow Milwaukees

example if the Ordinance is upheld.

68. Instead, if these companies were forced to obey the Ordinance, they would simply

choose not to publish a game capable of being played in Milwaukee County Parkswhich,

depending on how the Ordinance is interpreted, could be any game at all. This, in turn, would

deprive the developers of the ability to further their business and to engage in the creative use of

the augmented reality medium. If the Ordinance and laws like it are allowed to stand, I am

certain that many companies that would otherwise publish innovative, creative content in the AR

medium would give up or go out of business. And that, in turn, would be incredibly detrimental

to the entire AR industry, and consequently to society as a whole, which stands to benefit

enormously from the innovations in information-sharing that AR will bring to all aspects of

modern life.

69. Never in my entire career have I heard of a governmental unit purporting to

regulate the publication of AR content like this. Because location-based mobile gaming was still

a relatively novel concept in 2011, I read occasional news reports in the years following the

release of Ingress about players who either injured themselves or had run-ins with law

enforcement. Things like that will inevitably happen with any new technology. Indeed, we still

read news reports of people injuring themselves because they were distracted by mobile

applications that have nothing to do with location-sensing or augmented reality. The fact that

individual users might do things they shouldnt while playing a game, however, is not a reason to

prevent the game from being published, any more than government could or should ban the

publication of a map, book, or movie that might encourage people to visit a particular place.

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 70. Indeed, I am reminded of the closing scene of the 2015 film Star Wars: The Force

Awakens. It was filmed on the remote Irish island of Skellig Michael. Tourist demand to visit the

island immediately skyrocketed, leading to resistance from conservationists. Regulators

responded by enforcing existing limits on the number of daily visitors to the islandnot by

banning the film or trying to tax its producers.11

71. I also fear that, if laws like this Ordinance are upheld, there is no reason to believe

they will stop at location-based AR games. If these can be regulated, why expect governments to

stop there? They may decide to impose onerous regulations on all AR content for whatever

reason, or prevent developers from adding AR content of any type to a particular location.

Because all AR content is inherently location-based to some degree, as I explained above,

reserving this power to government would devastate the entire AR industry.

72. The very act of a software developer assigning AR content to a particular location

is, in and of itself, a creative and expressive choice. This choice can have obvious significance,

such as the depiction of the Berlin Wall in Metaios TimeTraveler app. Or it may be more subtle,

such as the assignment of game stops to particular locations. Either way, if such choices are not

dictated by the function of the software, they are inherently creative choices.

73. Indeed, before I learned of the Ordinance, it was my understanding that no

government in the United Stateslet alone a county park departmenthad the power to regulate

the content of mobile video games, especially not just because they were afraid that too many

people might play them. The genuine fear and apprehension I feel over how laws like this could

decimate that AR industry to which I have dedicated my career is part of what motivates me to

support Candy Labs stand against this unjust and unlawful Ordinance.

11
http://www.independent.co.uk/news/world/europe/star-wars-irish-island-location-skellig-michael-row-ecologists-
and-locals-a6929426.html

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Further Declarant Sayeth Not.

Dated: April 18
__, 2017 ____________________________________
Ori Inbar

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