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Abstract:
What if you could check out of your world, and enter a place where the social environment was different, where real world laws didn't apply, and where the political system could be anything you wanted it to be? What if you could socialize there with family and friends, build your own palace, go skiing, and even hold down a job there? And what if there wasn't one alternate world, there were hundreds, and what if millions of people checked out of Earth and went there every day?

Virtual worlds - online worlds where millions of people come to interact, play, and socialize - are a new type of social order. In this Article, we examine the implications of virtual worlds for our understanding of law, and demonstrate how law affects the interests of those within the world. After providing an extensive primer on virtual worlds, including their history and function, we examine two fundamental issues in detail.

First, we focus on property, and ask whether it is possible to say that virtual world users have real world property interests in virtual objects. Adopting economic accounts that demonstrate the real world value of these objects and the exchange mechanisms for trading these objects, we show that, descriptively, these types of objects are indistinguishable from real world property interests. Further, the normative justifications for property interests in the real world apply - sometimes more strongly - in the virtual worlds.

Second, we discuss whether avatars have enforceable legal and moral rights. Avatars, the user-controlled entities that interact with virtual worlds, are a persistent extension of their human users, and users identify with them so closely that the human-avatar being can be thought of as a cyborg. We examine the issue of cyborg rights within virtual worlds and whether they may have real world significance.

The issues of virtual property and avatar rights constitute legal challenges for our online future. Though virtual worlds may be games now, they are rapidly becoming as significant as real-world places where people interact, shop, sell, and work. As society and law begin to develop within virtual worlds, we need to have a better understanding of the interaction of the laws of the virtual worlds with the law of this world.

virtual worlds, cyberlaw, cyberspace governance, intangible property, online rights, avatar rights

Abstract:
Markets for virtual property in massively multiplayer online games have recently emerged. This essay explores the question of whether such markets for virtual world properties might someday provide a basis for real criminal prosecutions. The authors conclude that this is unlikely. This is not due to the intangibility of virtual assets, but instead due to the contractual arrangements which modify the legal rights of players, as well as the encoded and textual game rules which govern player-to-player interactions in virtual worlds.

Property, rules, virtual worlds, games, cyberspace, cybercrime

Abstract:
Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. However our focus on copyright's recent history blinds us to the social information practices which have always existed. In this article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been the driving force behind copyright's expansion. However, all of the functions that copyright industries used to control are undergoing revolutionary decentralization and disintermediation. Different aspects of information technology, notably the digitization of information, widespread computer ownership, the rise of the Internet, and the development of social software, threaten the viability and desirability of centralized control over every one of the content functions. These functions are increasingly being performed by individuals and disorganized, distributed groups. This raises an issue for copyright as the main regulatory force in information practices, because copyright assumes a central control structure that no longer applies to creative content. We examine the normative implications of this shift for our information policy in this new post-copyright era. Most notably we conclude that copyright law needs to be adjusted in order to recognize the opportunity and desirability of decentralized content, and the expanded marketplace of ideas it promises.

Copyright, expressive content, culture, peer production

Abstract:
Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google's control over results constitutes an awesome ability to set the course of human knowledge.

As this paper will explain, fortunes are won and lost based on Google's results pages, including the fortunes of Google itself. Because Google's results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today's courtroom disputes over Google's results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, initial interest confusion and trademark use, are not up to the task they have been given, but that trademark law must continue to stay engaged with Google's results.

The current application of initial interest confusion to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of trademark use doctrine improperly relieves trademark law of any role in the supervision of the shape of Google's search results. The absence of any state involvement in the shape Google's results will effectively cede the structure of our primary online index to Google's law. Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.

Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.

Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google's results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early meta tag cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of trademark use.

Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both initial interest confusion and trademark use are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the likelihood of confusion standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google's current practices, Google's bid for the carte blanche freedom permitted by trademark use doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google.

Google, search engines, trademark, unfair competition, internet, cyberlaw, dilution

Abstract:
Many legal commentators have claimed that virtual worlds owe their popularity to their focus on user-generated content and user creativity. While this is true in part and authorial freedom may draw consumers to virtual worlds, user-generated content can also pose risks to virtual world businesses from both an aesthetic and legal perspective.

A significant tension exists between permitting participants to create content freely and building a successful virtual environment. In some instances, user-generated content can overwhelm virtual worlds. The future of user-generated content in virtual worlds is not clear, given the significant practical and legal problems that accompany user-generated content.

virtual world, user-generated content, digital culture

Abstract:
In this article, we discuss how trademark law might apply to virtual worlds and virtual economies. In Part I, we consider how trademark infringement in virtual worlds resembles and differs from trademark infringement in other media. In Part II, we look at the various business models of contemporary virtual worlds and how commerce takes place within them. In Part III, we consider the circumstances where trademark infringement may occur in virtual worlds by discussing questions of use, confusion, dilution and fair use. In Part IV, we examine the issue of contributory trademark infringement.

trademark, virtual world, contributory trademark infringement, trademark fair use

Abstract:
Ever since cyberproperty burst onto the legal scene a decade ago, courts and scholars have assumed that it is inevitable. This Article shows that it is not. Scholars have examined one element of the link between cyberproperty and property in asking whether cyberspace is the correct model for websites and e-mail servers. But remarkably, they have neglected the other property foundations of cyberproperty.

This Article shows that none of the primary theories supporting property - Locke's labor theory, Hegel's personhood rationale, and utilitarianism - justifies cyberproperty. It demonstrates that the concept lacks property's limits. And it finds that existing statutory prohibitions against spam, electronic invasion, and copyright infringement are more narrowly targeted and less likely to quash competition and speech. The Article concludes that the time has come to abandon cyberproperty.

cyberproperty, property, cyberspace, Locke, Hegel, utilitarianism, spam, electronic invasion, copyright

Abstract:
This brief paper surveys the copyright law issues raised by virtual worlds.

virtual world, virtual property, copyright

Abstract:
The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications.

This article explores society's interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that authorship marks are sufficiently analogous to trademarks that the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms.

trademark, copyright, intellectual property, Dastar

Abstract:
This article examines recent developments in both the doctrine and theory of legal cyberproperty rights. The first part of this article looks primarily at two seminal cases that might be considered bookends to the story of cyberproperty: Thrifty-Tel, Inc. v. Bezenek and Intel v. Hamidi. The Thrifty-Tel case is known as the starting point of cyberproperty. The Hamidi case is sometimes seen as concluding the story of cyberproperty, but in fact, it leaves cyberproperty doctrine largely an open issue.

The second part of this article, anticipating future struggles over the scope of cyberproperty rights, challenges two assumptions that act as theoretical and rhetorical engines driving arguments for cyberproperty. The first is the assumption that legal prohibitions against interactions with privately owned computing machinery are analogous, from a standpoint of law and policy, to traditional rights of exclusion from the use of or entry into personal or real property. The second is the assumption that the practical control of code can be understood as analogous to the social instrument of law.

Both of these assumptions may be initially appealing, but they are largely misguided, as the article explains. The digital information present within computer networks is analogous to neither private property nor law. As cyberproperty law and statutes are being crafted, we must struggle to craft its theory so that we invite broader discussions of the claimed harms and benefits that attend the creation or the failure to create cyberproperty rights.

cyberlaw, intellectual property, cyberproperty, cybertrespass, Hamidi, computer, trespass to chattels, trespass

Abstract:
In a 1951 article in Science magazine, librarian Ralph Shaw argued that copyright law paid insufficient attention to the attribution interests of authors. Shaw observed that the straightforward pecuniary interests of publishers diverged from the more complex reputation-based interests of authors. He noted how authors and publishers might have differing views regarding the benefits of providing thousands of copies of a work for free distribution. Of course, since Shaw had pointed out that no sensible publisher would be interested in giving away such free works, the example he used was fanciful at the time.

Today times have changed. The World Wide Web delivers a hyperlinked high-speed information environment that Shaw could not have imagined. Most importantly, just as Shaw predicted, authors are now giving away thousands - even millions - of free reprints and realizing what Shaw described as a great additional profit . . . in terms of professional credit. Copyright law, for various reasons, has largely ignored this fact. Shaw's right to credit is still as much a fantasy as the World Wide Web was half a century ago.

This article takes up Ralph Shaw's call for a right to credit in a new era of networked information systems. Copyright law should be adjusted to take into account the growing importance of open access forms of copyright creation and reputation economies. Prioritizing the legal importance of attribution in copyright is a change that is long overdue. The contemporary digital environment provides an opportunity and an important additional reason to revisit Shaw's salient distinction between the motivations of authors and publisher.

cyberlaw, intellectual property, copyright, moral rights, trademark, attribution

Abstract:
In the past, free distribution of copyrighted content was rare and was usually performed in the service of advertising or politics. Today, the ease of digital copying and distribution has enabled authors and artists to freely share digital copies of their creative and original works with broad audiences. Many creative people are availing themselves of this opportunity. Congress and the current copyright laws, however, remain largely oblivious to the concerns and contributions of these artists and authors. This paper argues that copyright laws need to be revised to take into account the role that free access content plays in the digital environment.

In sections I through V of this paper, I lay out three primary traditional business models of content distribution, as well as the challenges posed to these models by the digital dilemma. Section VI describes Congress' response to the digital dilemma as set forth in the DMCA. Sections VII and VIII explain how the DMCA fails to recognize and address important issues raised by free access content. Section IX offers a few brief suggestions on how to reform copyright law to address the interests of those who provide free access content.

cyberlaw, intellectual property, copyright, moral rights, DMCA

Abstract:
Consider the following scenario: your client is the purveyor of a soft drink called Gnucola. The Gnucola company has used your law firm to register the Gnucola mark with the United States Patent and Trademark Office, and has also used your law firm to assist it in obtaining the registration of several Internet domain names including the term Gnucola. Your client has built an Internet website at these domains from whence it promotes and sells its flavorful amber beverage. Gnucola's customer base is rapidly expanding and its revenues are strong.

One day, during an idle minute, the president of Gnucola searches for gnucola on a popular Internet search engine, E-Pointer. She finds, much to her surprise and chagrin, that the website for the archrival "MicroCola" is returned on the first page of results. The Gnucola website, on the other hand, is nowhere to be seen. It can only be found after clicking through several pages of results. The Gnucola president calls you for an explanation.

You call the EPointer company, only to have a sales representative politely inform you that if you had paid attention to the fine print on its site, you would have seen that E-Pointer is a paid placement search engine. MicroCola has paid a substantial sum to appear prominently in the listings under the term Gnucola. If Gnucola would like to appear on the first page of listings, E-Pointer tells you, it needs to pay for placement. You convey this to your client, who is outraged. She wants to know: Can Gnucola prevail against E-Pointer and MicroCola on a claim of trademark infringement?

paid placement, trademarks, search engines, cyberlaw, intellectual property

Abstract:
Search engines are the cartographers of the electronic frontier. In real space, a person wishing to travel to an unknown destination might consult a map or ask someone else for directions. In cyberspace, Web users consult search engines. Since novelty and unfamiliarity are often the most salient features of the Internet, leading search engines have become the central portals into cyberspace.

Keyword meta tags are a way in which the locales of cyberspace (individual websites) communicate with the cartographers and portals of cyberspace (the search engines) and describe their pages to the search engines in an attempt to be found more easily. This meta tag communication involves transmitters and receivers operating at cross purposes. Website owners are motivated simply by a desire to be found: search engines direct the traffic of the Web, traffic translates into fame and/or revenue, and therefore sites inevitably wish to be displayed to as large a number of Web users as often and as prominently as is possible.

This Note hopes to contribute to clarifying the doctrine regarding the legality of meta tag use when that use allegedly infringes on trademark rights. In Part II, I provide a brief introduction to trademark law and the Web. In Part III, I propose some new metaphors for keyword meta tags, search engine listings, and description meta tags, which I feel provide a closer fit to the realities of the Web. In Part IV, I divide legally problematic meta tag use into four categories: page jacking, spamdexing, editorial use, and competitor use. In Part V, I conclude by arguing that the application of traditional law works makes sense in the case of description meta tags, but is unwise in the case of keyword meta tags.

trademark, cyberlaw, cyberspace, meta tags, metatags, Brookfield, intellectual property

Abstract:
This essay examines various ways of describing the online game of Everquest, responding to and summarizing game studies scholarship that views Everquest as a fictive text, a computer game, and an online community. Each of these three distinct frameworks would seem to lead to different legal regulatory modalities, as the legal system approaches fiction, games, and communities in markedly different ways. In combining elements of fiction, game, and community in an integrated framework, Everquest challenges a prospective legal regulator to weigh policy considerations in determining how best to respond to an object and social practice that entails the interplay of various authorial, strategic, and community elements. Ultimately, the question of formulating an optimal regime of legal regulation for virtual worlds like Norrath must be seen as a potentially new question to be addressed by the political process, not a question that can be simply dealt with by the application of existing legal doctrines.

law, virtual worlds, Everquest, MMORPG, game studies