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Legal Danger: What We Don't Know About Virtual Reality Today Might Hurt Companies Tomorrow

Expecting consumers to take personal responsibility? Yeah, good luck with that.

The U.S. government’s consumer safety arm is often slow to catch up with new technology — but the currently hazy hazards of virtual reality might come back to bite ignorant startups in the ass, two lawyers said in a talk in San Francisco Monday.

The speakers were partner Brendan Murphy and associate Dan Ridlon from international law firm Perkins Coie, and the focus of their presentation was on practical tips for VR companies to guard against product liability lawsuits. But they asked for audience participation and definitely got it; the crowd of about 25 peppered them with questions and hypotheticals about potential safety problems in the nascent tech field.

“There aren’t any easy analogs for it, and the rules have changed very little in 50 or 60 years,” Murphy said. “And there can be a long latency period, of problems not known in the present.”

In other words: You might get sued in 10 years for something you didn’t know you were doing wrong this year. A key concern for the audience was cognitive effects, such as seizures, motion sickness or post-traumatic stress disorder that might be triggered by VR.

The lack of good comparisons between VR and past products was a common thread throughout the presentation.

At first, Murphy and Ridlon pointed to the precedent of an unsuccessful lawsuit brought by the families of the Columbine Massacre victims against several large video game publishers; the courts concluded that the games’ effect on the imagination could not be directly linked to the real-life shooting. However, a couple audience members retorted, the whole premise of VR is that it is different from traditional video games, so would they get different regulations?

Ridlon started to say that games have historically been considered intangible media, like books, but that, too, was challenged from the peanut gallery. One attendee pointed out that a prominent chunk of VR entrepreneurs are working on haptic feedback technology that makes virtual experiences tangible.

Another big topic: Children. (Oh, won’t somebody please think of the children?) The fear is that using VR might have a long-term impact on a child’s still-developing eyes or brain that hasn’t yet been uncovered by researchers.

“If a product is marketed to kids 12 and under, then it’s considered a children’s product, even if adults use it too,” Murphy said. “Children’s products are a nightmare. So, for that reason, a lot of companies draw the line at 12/13.”

Some companies might regulate what content can appear on their platforms to make sure that marketing message is clear, he elaborated. But if VR winds up hurting a child’s eye development, and someone puts kid-friendly VR content on an open platform like YouTube that has no prior approval, then the platform owner may still be held liable, Murphy said.

That’s because those owners — such as Facebook, Google, Sony, Samsung and HTC — are in the best position to get a blanket warning out that kids should stay away. In other words, don’t be surprised if you see a safety warning every time you put on a headset, something Oculus already does with the Oculus Rift and Samsung Gear VR.

That’s a big “if,” of course — but it’s one that everyone in VR might wind up following closely.

And here’s another big one, a double-if: If there are problems caused by VR and if those problems take companies to court, they’ll have to prove that the benefits of the technology outweigh the risks. In those courtrooms, Murphy said, consumers’ personal responsibility has “very little” role.

“Even though they were marketed as an adult product, kids love shiny objects,” Murphy said of the now-banned magnet toys called Buckyballs. “If they ingested two or more, the magnets would fight each other and pinch their intestines.”

Free idea for the Oculuses of the world: Add “keep this on a high shelf, or in a safe that can be unlocked by answering questions about life in the 1990s” to your safety warnings. Just in case.

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