Congratulations to Arielle Lenza and Todd Marcus on the selection of their comments and notes for publication.
Arielle Lenza comments on the case of Rescuecom Corp. v. Google, Inc. (decided on September 28, 2006.) The issue in this case was whether a search engine's sale of a company's trademark as a keyword for contextual advertising purposes satisfied the "use" requirement for trademark infringement under the Lanham Act. The court held that the Google search engine did not "use" plaintiff's trademark because it did not affix it to goods or services. This case comment contends that the court used the correct test to determine infringement, but should not have granted Google's motion to dismiss because the "use" requirement should be interpreted more broadly to accommodate the protection of trademark owners in keying situations.
Todd Marcus's Note examines user created content in virtual environments, and how rights and ambiguities as to these rights are generated by the application of three separate rights determining layers consisting of Copyright law, the TOS/EULA, and user-to-user licensing. This Note will then suggest some approaches for clarifying rights and reducing potential infringement in order to provide the best set of incentives towards maximizing creativity. These approaches will explain how the fair use and useful article doctrines of copyright that limit broad protections can be applied to virtual objects in order to reduce the amount of material that can be protected. An explanation will then follow on how the TOS/EULA and user-based permissions which act as licenses can be used effectively to clarify rights specific to the types of creativity particular to a virtual platform, and how a broad user-to-user licensing structure can provide the best incentives to maximize creative output. Because Second Life is the only virtual platform that explicitly allows creators to retain their copyrights, and because Second Life has been generating a high amount of commercial activity and societal attention, it will be used throughout this Note as the case study.
