UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CANDY LAB, INC.,

Plaintiff,
v.

MILWAUKEE COUNTY, et al,

Defendants,

_____________________________________/

DECLARATION OF ANDREW COUCH

I, Andrew Couch, 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 am the co-founder and CEO of Candy Lab, Inc. (Candy Lab AR), a location-

based augmented reality technology company incorporated in Nevada and based in Irvine,

California.

3. Candy Lab AR brings this lawsuit challenging Milwaukee Countys ordinance

regulating the publication of location-based augmented reality games out of genuine fear and

apprehension that this ordinance, conceptually and as written, poses a mortal threat not only to

Candy Lab ARs new location-based augmented reality game, but also to its entire business

model, and, indeed, to the emerging medium of augmented reality as a whole.

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 Candy Lab AR and Location-Based Augmented Reality

4. I co-founded Candy Lab AR April 11th 2011. Candy Lab AR develops software

for location-based mobile device applications. Location-based applications track the geolocation

of the device running the application in real time, and allow the user to interact with certain

digital content based on the devices geolocation.

5. Candy Lab ARs applications also feature an augmented reality component.

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

Augmented reality (or AR) refers to the conveyance of digital information in a manner that is

overlaid upon, or otherwise blended with, a persons perception of their physical surroundings,

creating 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

applied to the sense of sight.

6. The AR component of Candy Lab ARs mobile applications refers to a digital

image that appears on the display screen of the mobile device. The application overlays the

image on top of a live video display from the devices rear-facing video camera, creating the

illusion that the digital image is physically present on the other side of the users device.

7. The following is an example of a Candy Lab AR application providing an

augmented reality experience on a mobile device. In the photo, a person is holding up a mobile

device and seeing a live video image of the physical location in front of them, except with a

digital image (here, a treasure chest) overlaid on top of the video feed. The effect is to create the

illusion that the digital image is physically present in front of the user.

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 8. Candy Lab ARs applications assign each digital image they display to a

particular geolocation. That means that any person using the application will see the same image

in the same physical place, regardless of the users location or the direction from which the user

is viewing the image. This further enhances the illusion that the digital object is present in

physical space. It is also what Candy Lab AR means by the phrase location-based augmented

reality.

9. The two images below illustrate how this location-based augmented reality

experience is created. The first image shows a Candy Lab AR employee using a desktop

computer in Candy Lab ARs offices to program its mobile application to display a particular

image at a specific set of physical coordinates (indicated by the red dot on the map):

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The second image shows a person using a Candy Lab AR mobile application to locate and view

the image (a multi-colored polyhedron) at those coordinates:

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 10. In 2012, Candy Lab AR launched its first location-based augmented reality

mobile application, called CacheTown. As described in an October 2, 2012 article on

VentureBeat, Cachetown is a mobile app technology that uses your smartphones camera to turn

the world into a video game via augmented reality with lots of advertising potential for

brands.1

11. Candy Lab AR creates not only its own applications, but also licenses its

proprietary software engine for use in white label location-based applications offered by other

companies.

12. In late 2012, a company called Niantic, Inc. (a spin-off from Google, Inc.)

released a location-based augmented reality game called Ingress. That mobile application

allowed players around the world to engage in a science fiction storyline by interacting with

digital content (called portals) accessible at specific geolocations. Some of these portal

locations were assigned by Niantic, while others were submitted by users. Niantics announced

policy was to locate the portals on public land, monuments, and other publicly accessible

locations. Players can find the portals using the games mapping feature.

13. In the Summer of 2016, Niantic released the location-based augmented reality

game Pokemon Go. From public reports and the general understanding within the AR industry,

this game used the same geolocation data collected for Ingress, and rebranded it with Pokemon-

related creative content. Portals became PokeStops. As with Ingress and other similar games,

players of Pokemon Go are able to gain certain in-game digital content by interacting with the

PokeStops available at fixed geolocations. Players are also able to capture Pokemon creatures

that the game spawns at random intervals and at random physical locations. This aspect of the

1
https://venturebeat.com/2012/10/02/cachetown-wants-to-bring-mobile-advertising-to-the-third-dimension-with-
gamification-augmented-reality/

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game offers an augmented reality experience, because the game can be set to display individual

Pokemon creatures at a specific location superimposed on the devices video feed.

14. I am also aware of several other publicly available mobile gaming applications

with various degrees of location-based and/or augmented reality features.

Candy Lab ARs Newest Location-Based AR Application, Texas Rope Em!

15. On March 10, 2017, at the annual South By Southwest (SXSW) technology

festival in Austin, Texas, Candy Lab AR announced the first ever location-based, augmented

reality poker game, Texas Rope Em! (Texas Rope Em).

16. Based on the popular poker variant Texas Hold Em, Texas Rope Em allows

users to play poker hands against a computer-controlled dealer. Upon opening the application,

players begin with two random playing cards. Because a Texas Hold Em hand consists of five

cards, players must collect additional cards to build their hands. They accomplish this by visiting

certain physical locations (game stops) that have been programmed into the application. Upon

arriving at each game stop, the application reveals two more random cards, of which the player

can select one to add to their hand. Once players build a five-card hand, they may visit up to

three additional game stops to discover additional cards that may improve their hand.

17. The player may then play their hand against the computer-controlled dealers

hand. Points and other prizes are awarded for victories. Win or lose, players may then start the

process over by building a new hand, and may share their results with friends via social media.

18. Texas Rope Em includes a two-dimensional map display to direct users to the

various game stops at which cards may be discovered. Below is a screen capture from the game

displaying the pre-programmed game stops within Milwaukee Countys Lake Park at which

players may discover cards:

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 19. Once a player reaches one of these locations and selects one of the game stops on

the map, the player sees an image and dialogue in three-dimensional augmented reality similar to

the following image (which was taken in Austin during SXSW):

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 20. The software that allows individuals to play Texas Rope Em is contained entirely

within the application that can be downloaded to a users mobile device. The content displayed

to users by the application is either resident within the application software, gathered by the

sensors built into the device (such as GPS, rotational sensors, and accelerometers), or retrieved

by the application from an internet server. The application is currently available for download

through both the iOS App Store (for Apple devices) and Google Play (for Android devices).

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 21. In light of the popularity of Texas Hold Em poker and the recent success of

location-based AR games such as Pokemon Go, Candy Lab expects Texas Rope Em to be a

popular game.

22. Texas Rope Em is currently in beta form, meaning that although it is publicly

available for download and use, its functionality is limited compared to the anticipated full

public release. As of this date, the game is only playable in select cities, including Austin,

Milwaukee, and London. Candy Lab AR is scheduled to showcase the game at technology

conferences in Los Angeles and New York in April 2017.

23. Candy Lab AR issued a press release about Texas Rope Em in connection with

its release at SXSW, and advertises the game on Candy Labs website and on social media.

24. Candy Lab AR plans to release the full version of Texas Rope Em in the second

quarter of 2017. Candy Lab AR does not intend to populate all of the game stops in that version

of the game before release. Rather, the game will be designed to allow individuals in various

cities to submit locations to be used as game stops, which Candy Lab AR will then make

available in the game at the direction of those userssimilar to my understanding of how

Niantic gathered the location data used to create game stops for Ingress and Pokemon Go.

The Milwaukee Ordinance

25. In mid-March 2017, 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). The Ordinance

amended Section 47.03 of the Milwaukee County Code of General Ordinances, to establish a

policy for location-based augmented reality games in Milwaukee County Parks.

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 26. After a recitation of the Boards motivations for adopting it, the operative portion

of the Ordinance reads as follows:

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.

27. 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; 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.

28. 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

the owner of a business that develops software with both geolocation and augmented reality

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

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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.

29. Because location-based and augmented reality software is the heart of Candy Lab

ARs business, the company intends to continue developing and publishing all manner of games

with various forms of these functionalitiesincluding some that may be considered virtual

gaming and/or location-based augmented reality games under the Ordinance.

How the Ordinance Injures Candy Lab AR and Suppresses

the Publication of Texas Rope Em

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

for me or Candy Lab AR 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 a Fitbit bracelet or

Apple Watch 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 artificial images and

sounds. Both of these activities appear to fit the Ordinances definition of virtual

gaming.

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

context:

i. location-based could mean content that is fixed to, and only accessible

at, specific geographic coordinates. But it could also mean content that is

dynamically triggered based on the users proximity to objects that are not

fixed in space, such as another persons mobile device, or locations

randomly chosen by an algorithm, such as how digital creatures are

generated in Pokemon Go.

ii. Similarly, location-based augmented reality could mean AR content that

is associated with a specific geolocation, or that is triggered by proximity

to a certain geolocation but displayed randomly, or content that conveys

information about a location but is displayable anywhere.

iii. 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. 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

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 perceive reality. The Ordinance is entirely unclear as to whether

and how it applies to these applications.

iv. 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 Lab ARs CacheTown, which was described in the press as

gamified advertising, or Googles popular navigation program Waze,

which offers users points and badges for doing things like visiting

new locations or reporting traffic incidents?

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

required before the game falls under the Ordinance? Is Pokemon Go still

regulated if users disable the AR feature?

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

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 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

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 defined term that is much

more broad. 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 AR 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 AR when it develops white-label applications for other companies?

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?

31. 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

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I did). The home page of the Parks Department website, available at

<http://county.milwaukee.gov/Parks>, says nothing about location-based or virtual games. It

does contains a menu of subpages, one of which is labeled Permits. Ex B.

32. The Permits page, available at <http://county.milwaukee.gov/Permits9056.

htm>, also contains no information about location-based or virtual games. Instead, it offers links

to the following choices: Athletic Field, Dog Exercise Area Permit, Geocaching Permit, Parking

- O'Donnell Park, Photography/Filming, Picnic, Room, Building, & Special Facility Rental,

Sales/Vendors, Special Event, and Wedding Ceremony/Reception. Ex C.

33. Exploring each of these options reveals that only one of these pagesSpecial

Eventcontains relevant information. Ex D (available at <http://county.

milwaukee.gov/SpecialEvent9060.htm?docid=9060>). Specifically, this page says:

A Special Event Permit Application must be completed, submitted, approved, and

processed by the Milwaukee County Parks Special Events Office, including a non-
refundable down payment, to reserve an outdoor park space, parkway or park road for
any of the following: ...

Virtual Gaming (For game developers only)

Ex D (emphasis in original). This webpage does not define virtual gaming, however, or give

any other information about which digital games require a permit.

34. Selecting the underlined portion of the foregoing text hyperlinks readers to the

Milwaukee County Parks 2017 Special Event Application found at

<http://county.milwaukee.gov/ImageLibrary/Groups/cntyParks/permits/SpecialEventPermitAppl

ication.pdf> (the Permit Application). Ex E. 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 E at 5-9. Much of this information is either

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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.

35. 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

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

Permit. (Id. at 2.)

36. The Permit Application also contains a number of onerous warnings and

obligations. Below are examples of the burdens that the Permit Application imposes on game

developers, and how they would affect Candy Lab AR:

a. Vicarious Liability. The Permit Application includes an agreement to indemnify

the County and hold it harmless from all liability aris[ing] out of or are in any

manner connected to this permit, (id. at 3, 9); an acknowledgement that [t]he

permit holder ... will be responsible for the conduct of the group and for the

condition of the reserved area, (id. at 9); a warning that [a]ny damage caused by

vehicles will be the responsibility of the permit holder, (id. at 8); a provision that

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 Permit holder shall be responsible for any actual documented physical damage to

the premises caused by its event, employees, agents, representatives, and guests.

Within five (5) days of the conclusion of the event, the premises shall be restored

to the satisfaction of the Regional Manager. (Id. at 2.) These provisions impose

on Candy Lab AR vicarious liability for the actions of every single person who

downloads and plays its game in the parks, despite the fact that Candy Lab AR

has no relationship with, and cannot possibly knowlet alone controlthe

actions of these people. The cost of bearing that responsibility would be

financially prohibitive.

b. Liability Insurance. The Permit Application requires that ALL special events ...

are required to submit a Certificate of Insurance in the amount of $1,000,000

of general liability coverage naming Milwaukee County Parks as an additional

insured for the date(s) of the event including set-up and teardown date(s).

Milwaukee County Parks must be listed as the Certificate Holder .... The special

event permit will not be issued if a Certificate of Insurance has not been received,

accepted, and placed on-file. (Id. at 2, emphasis in original.) The cost of

obtaining this insurance for unknown numbers of players, in every park, during all

park hours, would be prohibitive.

c. Physical Presence. The Permit Application requires that [a] copy of the Special

Event Permit must be present and on-site for inspection on event date(s), (id. at

4). This requires Candy Lab ARa small start-up located in Irvine, California

to have a representative physically present in every Milwaukee County Park

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 where its game may be played, during all park hours. That, of course, is

impossible.

d. Restroom and Trash Services. The Permit Application instructs that [o]ne

portable restroom for every 100 people is required for all special events that do

not provide beverages .... Portable Restrooms must be provided by event

organizer if estimated attendance is above 250 people. (Id. at 7); and that Permit

holder shall be responsible for the collection and removal of all event related

garbage and litter from the site and surrounding areas ... to the satisfaction of

Milwaukee County Parks. Permit holder will be billed for any additional cleanup

($50.00 per employee per hour) and/or damage to park property. The use of

confetti is prohibited. Permit holder is responsible for recycling all recyclable

materials. (Id. at 2.) This imposes on Candy Lab AR the responsibility and

expense of providing restrooms and trash removal for unknown numbers of

players, at all County parks, during all park hoursessentially delegating to

Candy Lab AR the Countys entire responsibility for maintaining its own parks.

This, too, would be prohibitively expensive.

e. Security and Parking Services. The Permit Application instructs that Milwaukee

County Parks reserves the right to require the presence of Milwaukee County

Sheriffs Office (MCSO) at any event even if a private security company is hired

by event. Fees for MCSO assistance may apply. Permit holder is responsible for

payment of said fees. Permit holder shall contact MCSO and any police

department(s) affected by event at least 30 days prior to their event date. (Id. at

3); and that Milwaukee County Parks reserves the right to conduct a parking

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 operation and collect parking fees whenever deemed necessary. Permit holder

might have the option to purchase parking from Milwaukee County Parks when

and if available so that their attendees will have free parking. If an event is

approved to purchase parking from the Milwaukee County Parks and they decide

to charge for parking, fees must be pre-approved by the Milwaukee County Parks.

Parking fees cannot exceed $5.00 per car. Permit holder is responsible for

managing, staffing and conducting the parking operation. (Id. at 3.) This imposes

unknown expenses on Candy Lab AR that are totally within the Countys

discretion to quantify, and delays the publication of Candy Labs game for an

additional period of time.

f. Pre-Approval of All Content and Every Revision. The Permit Application

requires applicants to [a]ttach a detailed route and/or site map to your

application. Your application will not be reviewed if a route and/or site map(s) are

not included. Your route and/or site map must be approved by the Special Events

Office and Regional Manager .... (Id. at 1); and that [i]t is the responsibility of

the applicant to submit any amendments and/or revisions to the original

application in writing. Revisions are subject to the review and approval of the

Special Events Office and the Regional Manager. (Id. at 1.) This means Candy

Lab AR must disclose the location of every game stop before releasing the game,

and go through the entire process over again before each update made to those

locations. This is onerous at best for locations chosen by Candy Lab AR, but

practically impossible with respect to any user-generated content.

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 g. Taxes on Candy Lab AR Revenue. The Permit Application warns that [a]ny

exchange of money in or use of a Milwaukee County Park for fundraising or

material gain ... require a remittance to Milwaukee County and additional fees

will apply. (Id. at 7). Texas Rope Em is currently available as a free download,

but may in the future either be sold for purchase, or else (more likely) will offer

additional digital content for in-game purchase. This text appears to suggest that

any in-game purchases (or advertising revenue, for that matter) made within

Milwaukee County Parks will be taxed. That conclusion is also supported by

County Supervisor Sheldon Wassermans repeated statements during debate on

the Ordinance that companies like Niantic were using such games to make money

in County Parks without any of that money going to the County. How such a tax

could be administered, however, is anyones guess.

h. Multiple, Undefined Fees. The Permit Application instructs that, [i]f your

Special Event Application is approved, you will receive an email with fee

information and requirements to obtain your permit. The Regional Managers

contact information will be listed on this email, and it is the responsibility of the

event organizer to call or email the Regional Manager promptly to discuss details

of the event. Without the Regional Managers approval, a special event permit will

not be issued. All payments are required at least ninety (90) days prior to the

event date. If the special event permit fee is not received by the specified due

date, a late fee will be assessed or the event may be cancelled by the Milwaukee

County Parks Department. (Id. at 1.) For special events (excluding wedding

ceremonies) that have never been held on Milwaukee County Parks property, a

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 non-refundable deposit of $500.00 is required for events held on the Lakefront ...

and $250.00 for events held at any other Milwaukee County Park. (Id. at 2.) Also

charged are Additional Fees: All events are required to pay for any extra

arrangements needed or equipment requested. The Regional Manager will provide

a detailed cost estimate in writing. An invoice for these charges will be sent and

the fees will be due thirty (30) days from the date of invoice. If available, the

following items may constitute an additional cost for your event: hotline fee

($500.00), garbage collection ($50.00 per employee per hour), recycling

containers rental ($5.00 per day), picnic tables rental ($15.00 per day), garbage

baskets rental ($7.00 per day), barricades rental ($8.00 per day) and an excessive

clean-up fee ($150.00 minimum).... There is a $0.50 per participant fee (plus sales

tax) for registered participant groups of 500 to 4,999, and a $0.75 per participant

fee (plus sales tax) for registered participant groups of 5,000 and over. ... All

events that utilize or affect the usage of a designated picnic area, pavilion and/or

athletic field will pay the associated fees and those affected areas will become

part of the Special Event Permit. ... All Special Event Permit fees include sales

tax (5.6%). (Id. 2-3.) Also, [a]ll cancellations must be made in writing ...[,]

must be received at the Special Events Office no later than ninety (90) days prior

to the event to receive a refund[,] ... [and] will be charged a $150.00

administrative fee. (Id. at 2.) These multiple, duplicative, and uncapped fees

would be prohibitively expensive for Candy Lab AR.

i. Forced Content in, and Pre-Approval of, Advertising. The Permit Application

instructs that Milwaukee County Parks in its sole discretion may require

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 prominent placement of its logo on any and all promotional materials, whether

print or digital, related to your special event. If Milwaukee County Parks Logo is

required, acknowledgement signage must be prominently displayed at the

entrance to the event, on stage if applicable, and in all print and TV promotions

and advertising. A copy of the promotional and advertising materials must be

submitted to the Special Events Office thirty (30) days prior to event date. (Id.

at 4, emphasis in original). This would require Candy Lab AR to prominently

include County insignia in all of its advertising for Texas Rope Em, including,

presumably, on its website, in social media posts, in app stores, and everywhere

else the game is discussed or displayed, even though the number of game stops in

Milwaukee County Parks are but a tiny sliver of the stops that will be available

across the globe in the final version of the game. Not only that, but it requires

Candy Lab AR to get Milwaukees permission before running any of these ads.

That is not only logistically infeasible, but also ridiculously undemocratic.

j. Non-Assignment. The Permit Application cautions that Permits are not

assignable and not transferable. (id. at 4). This means Candy Lab AR could

never sell its intellectual property to another company without that purchaser

going through the same laborious permitting process.

k. Complete Discretion. The Permit Application warns that Submittal of an

application does not automatically grant you a permit or confirmation to

conduct your planned event (id. at 1, emphasis in original). This means that

Candy Lab AR could go through this entire, laborious permitting process

including by paying non-refundable fees, securing insurance coverage, submitting

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 all of its game content and advertising for review, among other thingsand still

be denied a permit on the Countys whim.

37. 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 Candy Lab AR and others 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.

38. 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 E at 4.

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

according to Candy Lab ARs understanding of that term.

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

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

Texas Rope Em.

42. Therefore, Candy Lab AR reads the Ordinance, and the Permit Application issued

pursuant to the Ordinance, as requiring Candy Lab AR 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.

43. 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 AR appears to

already be in violation of the Ordinance.

44. Candy Lab AR is still a modestly sized startup company reliant on a handful of

investors. It 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

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. Instead, if Candy Lab AR were forced to obey the

Ordinance, it 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 Candy Lab AR of the ability to further its business and to engage in

the creative use of the augmented reality medium, as it desires to do.

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 45. I am aware of many other companies in the AR and mobile app industries, and

most of them are small start-ups like Candy Lab AR. 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.

46. 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 revulsion and despair I feel at the thought of this prospect has

motivated Candy Lab AR to take a stand against this unjust and unlawful Ordinance.

Milwaukee Countys Confirmation That the Ordinance

Applies to Texas Rope Em

47. I communicated directly with the County to confirm my understanding that the

Ordinance applies to Texas Rope Em. One of the pages on the Parks Department website, called

Contact Special Events, contains an online form through which readers are invited to contact

the department to find answers to many of your questions on the Parks website ... [and to l]earn

more about ... Special Events. Ex F (available at <

http://county.milwaukee.gov/ContactUs13119/Contact-SpecialEvents.htm> ).

48. Specifically, on March 23 I authorized the following message that was sent

through this website, under my name and contact information:

Im writing to ask whether my company requires a Special Events permit before

releasing its new location-based augmented reality game to the public. The game
is called Texas Rope Em; information is available at http://texasropeem.com/ .
Just like Pokemon Go, it requires players to be in the vicinity of certain physical
locations in order to interact with virtual itemsin this case, virtual poker cards.
The beta version of the game is currently playable in Milwaukees Lake Park.
Once its formally launched in the near future, players will be able to create their
own locations, and I fully expect them to appear in Milwaukee parks. Because

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 poker is so popular, we hope this game will be even more of a hit than Pokemon
Go was. Please let me know as soon as possible.

49. On March 24, 2017, I received a response via email from Ryan Broderick, Special

Events Coordinator for the Milwaukee County Department of Parks, Recreation & Culture. He

wrote:

Hello Andrew,

Thank you for contacting the Milwaukee County Parks.

To apply for a virtual gaming permit you must complete the attached Special
Event Application and submit with a map of all of the areas that you would like
to add virtual gaming stops.

Ex G (emphasis in original). The attachment to Mr. Brodericks email was the same Permit

Application available on the Countys website.

50. As still further confirmation, I responded on March 27 as follows:

Thank you for responding to my inquiry and clarifying that Candy Lab requires a
Special Events permit before releasing Texas Rope 'Em to the public. We will
review the form and get back to you.

Id.

51. On March 28, Mr. Broderick responded again, saying, Great, thank you so

much! Have a wonderful day, Ryan. Id.

52. These communications directly confirmed my understanding that Milwaukee

County expects Candy Lab AR to seek and obtain its permission, under all of the onerous

conditions laid out in the Permit Application, before it will deem Candy Lab AR able to lawfully

release its video game to the public.

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Further Declarant Sayeth Not.

Dated: April 19, 2017

Andrew Couch

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