Quarterly Journal Volume 54, Issue 2 June 2026

Retrieval-Augmented Generation (“RAG”) is a powerful and increasingly common technology being employed by the largest Artificial Intelligence (“AI”) companies. Despite over ninety pending lawsuits related to AI technology, very few challenge the new technology, and its legality remains largely unexamined. Some people may assume that it works similarly to other new AI technology like the large language models powering now-ubiquitous AI services, and therefore will have the same legal status. It is technologically different, however, and therefore requires distinct analysis to determine whether it is lawful. This Article conducts such an analysis. First, it describes how RAG works. It then describes general copyright law and concludes that RAG prima facie infringes copyrights. Next, it analyzes the fair use doctrine to determine whether the often-used defense applies to RAG. To conduct that analysis, this Article first summarizes the fair use analysis from three groups of impactful and relevant cases; (1) recent AI cases, (2) search engine cases, and (3) news media cases. It then analyzes each fair use factor, in turn, and concludes that RAG is likely not fair use, even if training a foundation model may be fair use. 

Video game developers routinely incorporate real-world trademarks—logos on storefronts, brand-name vehicles, products on shelves—to make their virtual worlds feel real. For three decades, courts evaluated these uses under Rogers v. Grimaldi, which protected expressive uses of trademarks unless they explicitly misled consumers. The Supreme Court's 2023 decision in Jack Daniel's Properties, Inc. v. VIP Products LLC narrowed Rogers sharply, holding that the test does not apply when a mark is used "as a mark." For an industry whose titles and in-game elements often function simultaneously as expressive content and as source identifiers, Jack Daniel's left a doctrinal mess. This Note examines the first wave of post–Jack Daniel's gaming cases, focusing on Activision Publishing, Inc. v. Warzone.com, LLC and Mar Vista Entertainment, LLC v. THQ Nordic AB. Two responses have emerged in the academic literature: a strict reading of Jack Daniel's that subjects most gaming uses to ordinary likelihood-of-confusion analysis, and a transformative use approach borrowed from right-of-publicity doctrine. This Note argues both are wrong. The strict reading underprotects creative choices that depend on realistic depiction; the transformative use approach asks courts to grade artistic merit, a task they are poorly suited to perform. Drawing on the analytical structure of Rogers itself, this Note proposes a multi-factor framework keyed to how the mark functions within the game—as title, as in-world artifact, as gameplay mechanic—rather than to the artistic worth of the use.

As technology has developed since the enactment of the Digital Millenium Copyright Act, the symbiotic relationship between Internet users, social media companies, and copyright holders has become constrained by the difficulties of navigating an expanding Internet. With the increasing dominance of social media as the arena of popular culture, the facilitation and encouragement of fair use is important for all stakeholders. As users depend on this doctrine to join the social dialogue, social media companies and copyright owners depend on users’ participation to market and spread their creative work. However, the practical realities of protecting their exclusive right to use and control their intellectual property in such a large environment have pushed copyright holders to utilize algorithms to monitor users’ content for infringement, a tool that cannot perform an accurate fair use analysis. In turn, social media platforms began to utilize algorithms to monitor their platforms as well, so as to keep up with the eligibility demands of the DMCA. As such, the fair use rights of users are not given the consideration they require. This Note proposes that Congress amend the DMCA to require a more detailed analysis of fair use to initiate the notice-and-takedown procedures, so that fair use becomes a preliminary matter. The legislature should require a substantive complaint from copyright holders that expresses the basis for a takedown notification, shifting the balance away from algorithms and back to human review. This would allow each party to enjoy the benefits of social media as a public forum where individuals can further contribute to popular culture. 

In order to more efficiently and effectively promote the interests of the U.S. and its public, Congress should amend 19 U.S.C. Section 1337 to incorporate a public interest analysis earlier in the investigative process. The International Trade Commission is uniquely mandated to tailor investigations, nullify or modify remedies, and come to a result that is in the best interest of the United States and its broader goals. This issue is especially significant for patent litigation, where the low bar for institution allows complainants to obtain favorable remedies or settlements in drastically shorter timelines than in traditional district court cases. As a result, Respondents are being subjected to full trial length investigations, unnecessary litigation costs, and countless hours of work, even when it is detrimental to the public good. By conducting a public interest analysis in the initial determination to account for the public health and welfare, public safety, competitiveness in the industry, and impact on the American consumer, the ITC’s broad investigatory powers will be reserved for matters where they are necessary for the public good. By looking to administrative agencies, other competitors in the relevant industry, and experts as evidence and tests for the public interest, this Note proposes that Congress amend 19 U.S.C. § 1337 to include a termination of investigation based on demonstration of public interest analysis, allowing the ITC to more effectively protect the public good by limiting its investigations to where the public interest is at stake.