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Rebecca Tushnet

  • Are Shoes Art? ‘Wavy Baby’ Case Tests Trademark, Expression Line

    September 8, 2022

    Bloomberg Law – A trademark dispute between Vans Inc. and a Brooklyn-based art studio is set to rekindle a debate about how courts should properly…

  • Don’t mess with Barbie

    August 29, 2022

    Like an over-protective parent, toymaker Mattel Inc has long had a reputation for zealously defending its Barbie doll-related intellectual property. So when Rap Snacks Inc…

  • Archive Of Our Own’s 15-Year Journey From Blog Post To Fanfiction Powerhouse

    August 17, 2022

    In May 2007, fanfiction and traditionally published author Naomi Novik wrote a post on LiveJournal. “We are sitting quietly by the fireside, creating piles and…

  • Why Is It Legal to Advertise for Gambling But Not Cigarettes?

    February 25, 2022

    I cannot tell you how many ads I’ve been served by various interested firms since sports betting became legal in New York State this year. Caesar’s Sportsbook has J.B. Smoove and Halle Berry encouraging me to gamble. FanDuel and DraftKings, pioneers of mobile-app sports betting, have constant promotional campaigns offering free money for my first bet. All of these massive marketing budgets have, as their north star and balance-sheet justification, one principle: it’s worth spending a big chunk of change to get a big chunk of people addicted to gambling on your platform. The House might not be a physical building on the Vegas strip, but it still always wins. ... Why is Joe Camel out of bounds, then, but ads for booze and gambling are above-board? I asked Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School—who specializes in, among other things, advertising law—what the deal is here. As it turns out, it’s a particularly American cocktail of strident free-speech principles, waxing and waning puritanical attitudes, and corporate power. Our conversation has been edited for length and clarity.

  • Alison Parker’s dad turned the video of her 2015 death into an NFT to get it pulled from the internet, but there’s a ‘0% chance’ it will work, copyright expert says

    February 24, 2022

    Andy Parker, the father of Alison Parker, the television reporter who was shot and killed in 2015 by a former colleague, created an NFT of the video of the fatal shooting in hopes it will give him power to remove clips from social media, The Washington Post reported. ... Dr. Rebecca Tushnet, a professor of law at Harvard Law School whose work focuses on copyright, trademark and false advertising law, told Insider she believed "there's a 0% chance that this will work." "I see no path forward through NFTs for this person who suffered an unspeakable tragedy," Tushnet said. "I don't know who encouraged this, but it is not going to give him what he wants."

  • Police officer displaying a rifle in a courtroom.

    A tough road for suing gun makers

    February 23, 2022

    Harvard Law Professor Rebecca Tushnet says that, despite the $73 million settlement between Sandy Hook families and Remington Arms, victims of future gun crimes still ‘face an uphill road.’

  • Digital Rights Groups Ask 11th Circ. To Nix Apple’s IP Appeal

    February 17, 2022

    The Electronic Frontier Foundation, a group of law professors and others on Wednesday urged the Eleventh Circuit to reject Apple's appeal of a lower court's decision that Corellium LLC's "virtual" version of the iPhone to detect potential bugs was protected by copyright's fair use doctrine. ... Several copyright professors, including Rebecca Tushnet of Harvard Law School, filed their own briefs in support of Corellium on Wednesday, saying that the "public benefits when copyright owners do not have a monopoly on information about the potential flaws in their works."

  • DC Circ. Is Told Digital Copyright Law Chills Free Speech

    January 21, 2022

    Advocates for the disabled, public libraries and documentary filmmakers have urged the D.C. Circuit to rule that a law making it a crime to circumvent technical features controlling access to copyrighted works violates the First Amendment. ... Copyright scholars Pamela Samuelson of the University of California, Berkeley School of Law and Rebecca Tushnet of Harvard Law School also filed an amicus brief Wednesday, arguing that the provisions "disregard and override traditional mechanisms within the Copyright Act that struck the balance between copyright protection and First Amendment interests."

  • Barbara Kruger Asks Justices To Mull Warhol Fair Use Ruling

    January 13, 2022

    American conceptual artist Barbara Kruger is urging the U.S. Supreme Court to look into the Second Circuit's decision that found Andy Warhol's artwork didn't make fair use of a photo of music legend Prince, saying that such works are "far from lacking creativity." ... Also on Monday, a group of copyright law professors, including Rebecca Tushnet of Harvard Law School, asked the Supreme Court to review the case. They argued that the Second Circuit wrongly disregarded the meaning of the contending works to determine why Warhol's art was transformative, which ultimately infected the court's fair use analysis. "It's [an] important fair use case for all artists, especially those without big names and deep pockets, and I believe the court will see its significance," Tushnet told Law360 by email Wednesday.

  • Inside the Realms of Ruin

    October 26, 2021

    “The Ruin stirs, and the Five Realms rumble,” a now-archived web announcement read on Thursday morning. “You are cordially invited to join New York Times bestselling and award-winning authors Marie Lu, Tahereh Mafi, Ransom Riggs, Adam Silvera, David Yoon, and Nicola Yoon in Realms of Ruin, a collaborative fantasy epic filled with dark magic, intrigue, and unique characters -- launched online in a thrilling new way.” ... As the catalyst for this collaborative fantasy epic, these authors would post twelve initial origin stories about their fictional universe, to which they owned the copyright. ... Within hours, fans confronted the authors in the Discord server with their concerns about the project. Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, summed the situation up aptly. “It’s a turducken of things people don’t understand,” she said. In other words, on top of the usual NFT concerns, the team would also be facing copyright questions and confronting the historical hesitancy from fan fiction writers over monetization of their works in a commercial environment.

  • Finally impressed? NFT of side-eyeing toddler meme fetches over $74,000 in cryptocurrency.

    September 27, 2021

    Chloe Clem did not intend to be an Internet sensation. She didn’t know her facial expression would resonate with fans for years to come. And she certainly didn’t know it would make her family more than $74,000. .... Eight years later, a non-fungible token (NFT) of the meme was sold Friday to 3F Music, a music production company based in Dubai, for 25 Ether — the cryptocurrency of the Ethereum network — which was worth more than $74,000 around the time of the sale. ... NFTs generally represent specific versions of digital files, though an NFT could also be assigned to an object, said Rebecca Tushnet, a professor of intellectual property law at Harvard Law School. “It is a way of saying, ‘I have a unique instance of a thing that is in fact infinitely replicable,’” she said. “It is basically artificially created uniqueness.”

  • Illustration showing Pinocchio caught in a spider's web with social media icons

    Oh, what a tangled web we weave

    July 7, 2021

    Deception spreads faster than truth on social media. Who — if anyone — should stop it?

  • man wearing crimson shirt looking at the harbor of a big city

    The alchemist

    May 27, 2021

    Keyon Lo LL.M. ’21 hopes to combine his legal and artistic skills to promote fairness and diversity

  • Digital art of a cat riding a rainbow.

    Memes for Sale? Making sense of NFTs

    May 19, 2021

    The high-priced sales of creative NFTs have recently become ubiquitous. Harvard Law Today asked intellectual property law expert Rebecca Tushnet to help make sense of the NFT boom.

  • Why the Supreme Court’s ruling for Google over Oracle is a win for innovation

    April 6, 2021

    After a 10-year legal battle, the Supreme Court ruled on Monday that Googledid not violate Oracle’s copyrights related to the Java programming language. But the momentous case that attracted briefs from many major tech companies and computer scientists may end up as a mere footnote in the history of software. That’s because the court’s opinion in favor of Google leaves intact how software developers have largely worked for decades, copying parts of existing applications that trigger functions and features and adding them to new ones...Companies including Microsoft, IBM’s Red Hat, and Mozilla filed briefs in favor of Google’s position, warning that upholding Oracle’s demands would make it much harder for new software development. “It’s a good decision for interoperability of software,” says Harvard University law professor Rebecca Tushnet, who wrote a friend of the court brief urging just such a ruling. Allowing the sharing of APIs without too much copyright protection should result in “increasing the creation and dissemination of new works.”

  • Trump social-media bans, and broader reform, overdue

    January 13, 2021

    Facebook, Twitter and other social-media platforms were right to at least temporarily ban President Donald Trump. The danger of Trump’s incendiary rhetoric and outright lies about election fraud was abundantly clear last week, after he goaded a mob that stormed the U.S. Capitol and interrupted the peaceful transition of power. This does not absolve platforms of their culpability, however, in amplifying, distributing and normalizing abhorrent and corrosive content for years. Nor does this let off the hook Trump’s allies and enablers, including many Republican leaders...This also will renew debate over Section 230, a telecommunications law that offers protections from liability. One intent of the law was to encourage websites to moderate objectionable content themselves, a task that the biggest platforms seem to do mostly after damage is done. Democrats have sought Section 230 changes to limit speech to which they object, while Republicans have pushed for Section 230 changes in hopes of reducing what they perceive as censorship by left-leaning tech platforms. Section 230 needs to be updated. But it’s only part of the broader regulatory reform that’s needed to address the outsized power and unfair business practices of digital platforms. Enforcing existing laws is also needed, said Rebecca Tushnet, Frank Stanton Professor of the First Amendment at Harvard Law School. She contends jailing those who carry out violent acts will do more than encouraging platforms to suspend more people.

  • Have Trump’s Lies Wrecked Free Speech?

    January 6, 2021

    In the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace ... In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech ... Rebecca Tushnet, a law professor at Harvard, wrote by email: “Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.” ... Lawrence Lessig, a law professor at Harvard...wrote by email, that “the First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.” ... Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.” ... In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that, “We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.”

  • Election robocalls: what we know and what we don’t

    November 4, 2020

    Millions of voters across the US received robocalls and texts encouraging them to stay at home on Election Day, in what experts believe were clear attempts at suppressing voter turnout in the closely contested 2020 political races. Employing such tactics to spread disinformation and sow confusion amid elections isn’t new, and it’s not yet clear whether they were used more this year than in previous elections—or what effect they actually had on turnout. However, there is some speculation that given the heavy scrutiny of election disinformation on social media in the wake of the 2016 presidential election, malicious actors may have leaned more on private forms of communication like calls, texts, and emails in this election cycle...The use of robocalls for the purpose of political speech is broadly protected in the US, under the First Amendment’s free-speech rules. But the incidents described above may violate state or federal laws concerning election intimidation and interference. That’s particularly true if the groups that orchestrated them were acting in support of a particular campaign and targeting voters likely to fall into the other camp, says Rebecca Tushnet, a law professor at Harvard Law School. The tricky part is tracking down the groups responsible, says Brad Reaves, an assistant professor in computer science at North Carolina State University and a member of the Wolfpack Security and Privacy Research Lab. The source of such calls is frequently obscured as the call switches across different telecom networks with different technical protocols.

  • These people want to trademark QAnon to cash in on novelty hats

    October 6, 2020

    It was bound to happen. People across the world are trying to trademark QAnon, the American far-right conspiracy theory baselessly claiming that Donald Trump is saving the world from a group of elite satanist paedophiles. According to data from the World Intellectual Property Organisation, a UN agency dealing with patents, copyrights, and trademark, seven applications to register “QAnon” or “Q Anon” as a trademark have been filed since the conspiracy theory debuted on 4Chan in October 2017. Of these, two have been successful – one in Australia and one in Germany – one has been dismissed, and the remaining four are pending. Most applications declare the intention to use the word – the pseudonym of the conspiracy theory’s initiator and now a byword for the whole delusion – as a brand for clothes, hats, coffee mugs, gadgets; some also aimed at registering the trademark to provide entertainment products and consultancy services...But the United States, where QAnon was born and most of its followers are based, is also the country where trademarking it might prove toughest. “Every time there's a cultural phenomenon, someone will try and register the associated phrase as a trademark,” says Rebecca Tushnet, a professor of law at Harvard Law School. “In the US, it usually fails.” That is because trademarks are supposed to work as indications of source: a swoosh on a pair of sneakers will tell you that those shoes were made by Nike rather than Reebok; an apple on a laptop will remind you that your computer was designed in Cupertino. In contrast, a QAnon logo on a T-shirt would not bring to mind any particular stylist. “The US Patent and Trademark Office [USPTO], which is the US entity that scrutinises these things, is likely to say: ‘This is just a name of a dispersed movement’,” Tushnet explains. “It doesn't tell anything about the source of the product.”

  • Supreme Court Justices Debate Generic .Com Trademark Registration

    May 5, 2020

    The U.S. Supreme Court seemed to struggle Monday with rules for trademarking generic names that are combined with the .com phrase. Many justices seemed to agree with an attorney for that a 132-year-old Supreme Court precedent probably doesn’t control the case. But they also sounded wary of granting an online monopoly over entire categories of goods and services, and that it could lead to a flood of litigation over similar sounding names...A longstanding rule of trademarks is that generic names cannot be registered. The PTO argues that adding .com isn’t enough to make a generic mark descriptive and potentially eligible for registration. The agency is invoking an 1888 Supreme Court ruling, Goodyear’s India Rubber Glove Mfg. v. Goodyear Rubber, that adopted a similar rule for the addition of “Company” or “Inc.” to a name. More recently, the U.S. Court of Appeals for the Federal Circuit has upheld the PTO’s refusal to register and, and the U.S. Court of Appeals for the Ninth Circuit has found AOL’s generic. The agency is getting amicus support from the Electronic Frontier Foundation and a group of intellectual property scholars led by Harvard’s Rebecca Tushnet, whose brief the justices brought up repeatedly Monday. The scholars caution against giving generic mark holders too big of a stick to ward off competitors and suggest that .coms can use unfair competition law to solve the problems they’ve identified.

  • Andrew Crespo works from a podium as he teaches his online class from his home

    Zooming in on faculty at home

    April 29, 2020

    With a little help from their at-home photographers, HLS professors share what teaching classes via Zoom looks like.

  • To Tackle COVID Price Gouging, 3M Turns To Trademark Law

    April 15, 2020

    Price gouging on face masks during a pandemic is pretty crummy behavior, but is it a violation of federal trademark law? 3M, the country's largest producer of crucial N95 masks, certainly thinks so. The consumer goods giant filed a lawsuit Friday accusing a New Jersey company called Performance Supply LLC of violating federal trademark law by trying to resell millions of the company's N95s to New York City at drastically increased prices. Later that day, 3M filed a nearly identical lawsuit against a Utah company for similar behavior. According to 3M, both companies were selling the masks at more than four times the list price...According to Rebecca Tushnet, a professor at Harvard Law School, 3M's claim that defendants illegally held themselves out to be "authorized vendors" is something of a stretch, supported by little discussion of what separates such an endorsed distributor from a plain-old vendor. "The vendor-authorized vendor issue is a really important distinction that companies would like to ignore so that they can kill the first-sale doctrine," Tushnet said. "But first sale provides important benefits to consumers and to competition." Those concerns aside, the protections of the first-sale doctrine do have limits, and experts like Tushnet say the defendants may have crossed them by holding themselves out as actually connected to 3M. For instance, in the New York City lawsuit, 3M says the defendant company misleadingly warned the city that "acceptance of the purchase order is at the full discretion of 3M." "3M doesn't need to kill first sale," Tushnet said. "It can go after the actual falsities alleged here, and N.Y.'s attorney general is ready, willing and able to enforce the anti-price gouging statute."

  • Oracle and Google are about to face off in tech’s trial of the century

    February 18, 2020

    On March 24, the Supreme Court is scheduled to hear one of the most momentous tech cases in decades...The case is Google v. ­Oracle, and it turns on who owns scraps of computer code known as APIs. Short for application programming interfaces, APIs allow one computer program to talk to another by letting, for instance, a weather app pull live temperatures from a third party and then display them on a map. APIs are an essential building block of the digital economy, and in the blockbuster case Oracle says Google committed copyright infringement by using its APIs without permission...A final wild card in the case is the fact that the aged members of the Supreme Court are unlikely to have deep knowledge of APIs. Harvard law professor Rebecca Tushnet, who filed a brief supporting Google and its fair-use argument, believes the justices will get up to speed when the case goes to trial. Nonetheless, she acknowledges there is a risk they may overlook the technical intricacies of the case—including that Google is claiming only a specific subset of APIs shouldn’t be copyrighted. If this happens, the justices may rely instead on the broader story lines that the companies are arguing. “A compelling narrative always matters. It gives the court a reason to find in your favor,” says Tushnet. “One framing of the story is that Google went ahead and plundered. The other framing is Oracle took something that belongs to everyone else.”

  • Rebecca Tushnet testifying before the Senate Judiciary Committee

    Rebecca Tushnet testifies on the Digital Millennium Copyright Act

    February 17, 2020

    Rebecca Tushnet, the inaugural Frank Stanton Professor of the First Amendment and a director of the Berkman Klein Center for Internet and Society, testified before the U.S. Senate Judiciary's Subcommittee on Intellectual Property, on Feb. 11, on “The Digital Millennium Copyright Act at 22: What is it, why was it enacted, and where are we now?”

  • Senate IP Subcommittee Kicks Off Year-Long Review of Digital Millennium Copyright Act

    February 14, 2020

    Senator Thom Tillis (R-NC) and Senator Chris Coons (D-DE) this week held the first in a series of eight tentative hearings scheduled for this year on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act. Tillis’ goal is to address changes to the internet since the DMCA was passed in 1998, and by December 2020 to release draft text of a reform bill for stakeholder comment... Professor Rebecca Tushnet of Harvard Law School and Professor Jessica Litman of University of Michigan Law School strongly cautioned the Subcommittee against conflating all internet service providers with Google and Facebook.  “Only a few services receive millions of [takedown] notices,” Tushnet said. “Most don’t need and couldn’t survive a requirement to use technological mechanisms to filter out rare infringements. If Congress changes 512 to target Google and Facebook, it will ensure that only they are left, making the problem of market concentration even worse.”

  • Copyright could be the next way for Congress to take on Big Tech

    February 14, 2020

    The first of 2020’s big copyright hearings started with a nod to Chumbawamba. Senator Thom Tillis (R-NC) had looked up which band topped the charts in 1998, the year Congress passed the Digital Millennium Copyright Act — one of the most influential and controversial laws governing the internet. Then, Tillis paused soberly. “I don’t know if we’re talking a lot about Chumbawamba” these days, he said. And the DMCA itself? “Almost every single thing about the internet has changed over the past 22 years, and the law simply hasn’t kept pace.”...The 1998 DMCA attempted to outline how copyright should work on the then-nascent internet, where you could almost freely and infinitely copy a piece of media. But it’s been widely criticized by people with very different stances on intellectual property. Supporters of tougher anti-piracy rules, for instance, argue that its “safe harbor” rules don’t motivate websites to keep pirated content offline. Conversely, internet freedom advocates say its takedown system provides a de facto censorship system for the web. And the DMCA’s reach touches far-flung issues like farm equipment repair, which makes it unavoidable even for industries with no piracy problems. This week’s hearing focused on two pieces of the law: Section 512, which spells out platforms’ liability for pirated content, and Section 1201, which limits cracking digital copy protection. “Most service providers don’t need and can’t get expensive filtering technology” that they’d need to implement a “stay-down” system, said Harvard Law School professor Rebecca Tushnet. “If Congress changes the DMCA to target Google and Facebook, or because of rogue overseas sites that already aren’t complying with the DMCA to begin with, it will ensure that only Facebook, Google and pirate sites survive.”

  • GOP Sen. Eyes Update To Decades-Old Cyber Copyright Law

    February 12, 2020

    Sen. Thom Tillis, R-N.C., said Tuesday that landmark legislation passed in 1998 to protect innovation and free speech on the internet while still fighting copyright infringement needs to be updated and that he wants to craft a reform bill by the end of the year. Tillis, who chairs the Senate Judiciary Committee’s intellectual property panel, kick-started the process of updating the Digital Millennium Copyright Act by convening a hearing with experts who talked about the pros and cons of the law as it operates today...There has been an exploding number of take-down notices under the law’s safe harbors, known as Section 512, he said....But Rebecca Tushnet, a First Amendment professor at Harvard Law School, opposed making the kinds of changes sought by those two witnesses, saying that even though “the system is by no means perfect ... like democracy, it's better than most of the alternatives that have been tried.” “Changes to 512 would be likely to make things much worse,” she said. Tushnet recommended, among other things, focusing on antitrust in copyright and telecom in any reform of the 1998 law.

  • Amazon’s Judging of IP Disputes Questioned in Sellers’ Lawsuits

    February 12, 2020

    Puppy toys should have nothing to do with car engines. But a recent court complaint says Inc. halted sales of a “puppy sleep aid” after being told a storefront selling on its marketplace infringed two patents—one registered in 1895, and another directed to a Japanese “combustion device.” “Neither patent is enforceable. Neither patent is owned by any Defendant,” the complaint says. As Amazon expands its reign over e-commerce and gets more aggressive about rooting out counterfeiting, it’s taking a more active role in judging intellectual property disputes between merchants on its platform... “Amazon, with its size, now substitutes for government in a lot of what it does,” said Rebecca Tushnet, a First Amendment and copyright law professor at Harvard University. “It is being asked to run a judicial system, without the commitments to transparency and precedent of a real judicial system.” ...But “many of its initial attempts to deal with bad actors on its site, while clearly done in good faith, assumed that the initial set of bad actors (counterfeiters) was the problem to be dealt with, and its response then created a new set of opportunities for new kinds of bad behavior,” Tushnet said.

  • Are Ben & Jerry’s cows actually happy? That question may be settled in court

    November 19, 2019

    For decades, Vermont-based Ben and Jerry’s has enjoyed a reputation as one of the country’s most progressive, forward-thinking companies...In recent years, however, the business started by two friends in a converted Burlington gas station has faced criticism over its own production methods, including a pair of lawsuits accusing the longtime ice cream purveyor of misleading consumers about just how humane its products really are...falsely claiming the milk used in its ice cream comes exclusively from “happy cows” and so-called humane “Caring Dairy” farms....In California, a San Francisco judge tossed out a suit brought by People for the Ethical Treatment of Animals accusing the California Milk Advisory Board of false advertising in a “Happy Cows” campaign — ruling that government entities aren’t subject to false advertising laws. But the allegations laid out in last month’s suit paint a compelling picture, says Harvard Law School professor Rebecca Tushnet, who specializes in advertising law. One of the key issues at hand, she says, will be whether the company’s “Caring Dairies” can be considered a factual claim or just marketing puffery. “By defining what ‘Caring Dairies’ means,” Tushnet says, “Ben and Jerry’s may well have made a factual claim that could be shown to be true or false.”

  • The Starship Enterprise’s Voyage to Fair Use

    October 21, 2019

    The Supreme Court is set to decide next month whether to review Oracle America Corp. and Google LLC’s nine-year fight over copyright fair use. In the meantime, a mash-up of Dr. Seuss children’s books and “Star Trek” television shows might provide the next big appellate test of the fair use doctrine. ... On the other side, the Electronic Frontier Foundation and others argue that transformative mash-ups deserve fair use protection, and that “Boldly Go” in particular “recasts, recontextualizes, and adds new expression or meaning” to the Dr. Seuss works in ways designed to resonate with “Star Trek” fans. A group of IP scholars featuring Berkeley Law’s Pamela Samuelson, Stanford’s Mark Lemley and Harvard’s Rebecca Tushnet say that a copyright owner must show a likelihood of harm to their traditional, reasonable or likely markets. A mere showing that a copyright owner “maintains a robust licensing program or participates in a seasonal market that the second comer would like to enter” isn’t enough to carry that burden, they argue.

  • Trump threatens to sue CNN — CNN shrugs

    October 21, 2019

    Lawyers for U.S. President Donald Trump and his re-election campaign have threatened in a letter to sue CNN for what they said was the network falsely advertising itself as a news organization, calling on executives to first discuss an “appropriate resolution” to the matter that would include a “substantial” payment to cover damages. The letter, dated Oct. 16 and made public on Friday, is the latest threat by Trump to sue a media organization over what he sees as unfair media coverage since launching his 2016 presidential campaign, although no lawsuits have been filed. ... Rebecca Tushnet, a professor of false advertising law at Harvard Law School, said there was “no merit” to the letter’s legal arguments and that she doubted a lawsuit would ever be filed. The letter was signed by Charles Harder, who has sent similar threats to media organizations on Trump’s behalf.

  • Innovation, Justice, and Globalization–A Celebration of J.H. Reichman

    Innovation, Justice and Globalization

    October 17, 2019

    The “Innovation, Justice and Globalization” conference, hosted by HLS professor and leading intellectual property scholar Ruth Okediji, brought international academics and policymakers to campus to discuss intellectual property issues.

  • Boy Scouts Are Just Scouts Now, and That’s Making Girl Scouts Mad

    April 17, 2019

    ... A week earlier, the Boy Scouts of America—the national organization that oversees various outdoors programs for about 2 million children, including Cub Scouts, Boy Scouts, and Venturing—had changed the name of its original, 109-year-old program to Scouts BSA. That made Amalie one of its first girl scouts. Not to be confused, of course, with the Girl Scouts—though Amalie said she’s one of those, too. ...And since 1938, when the U.S. Supreme Court told Nabisco and Kellogg Co. that they could both call their cereals “shredded wheat,” U.S. courts have been fairly consistent in allowing competing businesses to share a generic term. And yet, the term Girl Scouts is trademarked. “It’s a complex case,” says Rebecca Tushnet, a Harvard Law School professor who specializes in trademark law. “My prediction is that they’ll probably be able to change to ‘Scouts,’ but the issue will be over whether they have taken reasonable measures to avoid confusion.”

  • Pressure mounts on Facebook to police users’ content

    April 1, 2019

    Pressure on Facebook is mounting following a live stream of the New Zealand mosque massacre, with the nation’s leader calling for an overhaul of the country’s social-media laws and her Australian counterpart proposing criminal penalties for companies that are slow to remove such content. ...Despite being relatively small markets, Australia and New Zealand may carry more clout in the debate over how Facebook moderates content. “English-speaking countries, at least for now, have a lot bigger impact,” said Harvard Law School professor Rebecca Tushnet.

  • Pressure Mounts on Facebook to Police Users’ Content

    March 27, 2019

    Pressure on Facebook is mounting following a live stream of the New Zealand mosque massacre, with the nation’s leader calling for an overhaul of the country’s social-media laws and her Australian counterpart proposing criminal penalties for companies that are slow to remove such content. ... Despite being relatively small markets, Australia and New Zealand may carry more clout in the debate over how Facebook moderates content. “English-speaking countries, at least for now, have a lot bigger impact,” said Harvard Law School professor Rebecca Tushnet.

  • Dan Mallory, 2 Starkly Similar Novels and the Puzzle of Plagiarism

    February 14, 2019

    Last year, while promoting his debut thriller, “The Woman in the Window,” Dan Mallory praised the tradition of literary mimicry: “It is often said that ‘good writers borrow, great writers steal,’” he said in an interview with The Guardian, borrowing a phrase from T. S. Eliot. In retrospect, his choice of words was both surprisingly honest, and perhaps a clue to the depth of his deception. ... “The courts hold out the possibility that it could be infringement without a language overlap,” said Rebecca Tushnet, an intellectual property expert at Harvard Law School. “If you did the exact same things in the exact same sequence all the way through, the court wouldn’t have that much trouble finding infringement.”

  • Editorial: A Gift Outright of Literary Treasures — to Be Savored, or Sullied

    January 9, 2019

    On Jan. 1, a treasure trove of classic literature, along with other artistic works, entered the public domain as copyright protections expired.  ... Why now? As so often in American life, the answer begins with the Constitution. Section 8 of Article 1 provides Congress with the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The first Copyright Act in the United States was passed in 1790, with a maximum term of 28 years. And as also so often in American life, a simple idea evolved over the years into a system described as “mind-numbingly complex” by the Times and “worse than the tax code” by Rebecca Tushnet, an expert in intellectual property at Harvard Law School.

  • New Life for Old Classics, as Their Copyrights Run Out

    January 2, 2019

    ... Until now, the publishing house that still bears Knopf’s name has held the North American copyright on the title. But that will change on Jan. 1, when “The Prophet” enters the public domain, along with works by thousands of other artists and writers, including Marcel Proust, Willa Cather, D. H. Lawrence, Agatha Christie, Joseph Conrad, Edith Wharton, P. G. Wodehouse, Rudyard Kipling, Katherine Mansfield, Robert Frost and Wallace Stevens. ... When the first Copyright Act was passed in the United States in 1790, the maximum term was 28 years. Over the decades, lawmakers repeatedly prolonged the terms, which now stretch to over a century for many works. “It’s worse than the tax code,” said Rebecca Tushnet, an intellectual property expert at Harvard Law School. “The copyright term is way too long now.”

  • LaCroix calls its products ‘natural’ to make seltzer seem holy

    October 9, 2018

    A recent class-action lawsuit against the company claims LaCroix sparkling water has misled consumers by deeming itself “natural.”...“The biggest question still, the one that is dividing courts, is what counts as natural,” said Rebecca Tushnet, a Harvard law professor who specializes in false advertising. “It is genuinely hard to figure out what people expect the word to mean, and it’s genuinely hard to create a definition.”

  • Ban On ‘Scandalous’ TMs Is Probably Dead For Good

    September 19, 2018

    Will the U.S. Supreme Court revive a federal ban on the registration of profane trademarks like "Fuct," less than two years after it categorically struck down a similar rule used against the Washington Redskins? Not f***king likely, experts say...According to Rebecca Tushnet, a professor at Harvard Law School who focuses on the First Amendment and trademark law, the ban on “scandalous” marks raises even more constitutional concerns than the “disparaging” ban, not less. “Unlike ‘disparagement,’ which protected all groups equally from disparagement, ‘scandalousness’ protects the majority against the opinions or moral toleration of the minority,” Tushnet said. “That is definitely viewpoint-based.”

  • As Mexico Capitalizes On Her Image, Has Frida Kahlo Become Over-Commercialized?

    June 5, 2018

    In a few short decades, Frida Kahlo has gone from mainly known as the wife of of prominent Mexican painter Diego Rivera to becoming a pop culture icon. These days, she has far surpassed her husband’s fame. Converse, Forever 21 and Zara have sold shoes and clothes with Frida’s image. In a few short decades, Frida Kahlo has gone from mainly known as the wife of of prominent Mexican painter Diego Rivera to becoming a pop culture icon. These days, she has far surpassed her husband’s fame. Converse, Forever 21 and Zara have sold shoes and clothes with Frida’s image...The toymaker Mattel launched the Frida Kahlo Barbie as part of its “inspiring women” series. But some of Frida’s descendants say the doll betrays Frida’s very essence by eliminating her signature unibrow, lightening her eyes and thinning her hips. “The question really is who controls how people are interpreted. And when you can be made into a cultural icon,” says Rebecca Tushnet, who teaches intellectual property law at Harvard University.

  • The next big battle over internet freedom is here

    April 24, 2018

    This month, Washington lawmakers overwhelmingly passed a narrow bill that seeks to crack down on sex trafficking online. To most, it seemed like a no-brainer: Sex trafficking is obviously bad. The law, however, changed Section 230 of the Communications Decency Act of 1996, a 20-year-old communications law that is the basis of the free internet as we know it. On April 11, President Donald Trump signed the bill — a combination of bills passed by the House and Senate, the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the Stop Enabling Sex Traffickers Act (SESTA) — into law...There are concerns that FOSTA-SESTA could lead to the further erosion of internet freedom and safe harbor protections. “The larger question is whether this is part of a case for more extensive regulation on different intermediaries, and I think we just don’t know the answer to that yet,” said Harvard law professor Rebecca Tushnet.

  • Apple Faces Multiple Lawsuits Over Throttled iPhones

    March 28, 2018

    Dozens of iPhone owners are taking Apple Inc. to court over the company’s disclosure that it slowed down old phones to preserve battery life, in what could become one of the biggest legal challenges to the smartphone since its 2007 debut. Some five dozen iPhone customers have filed at least 59 separate lawsuits since December accusing Apple of slowing their phones to spur people to buy new iPhones, according to court records...Apple customers could find it difficult to win their case. Fraudulent-concealment claims, such as in the iPhone instance, are often hard to prove because courts typically want to preserve companies’ freedom to choose what to say, as long as it isn’t actively misleading, said Rebecca Tushnet, a professor at Harvard Law School.

  • We Asked 7 Lawyers to Untangle the Broadway Fight Over ‘To Kill a Mockingbird’

    March 26, 2018

    Harper Lee was a literary celebrity. Aaron Sorkin is a screenwriting superstar. And now the two — by proxy — are locked in a battle over who should shape the content in Mr. Sorkin’s stage adaptation of Ms. Lee’s famous novel, “To Kill a Mockingbird.” Ms. Lee, before she died, agreed to allow Mr. Sorkin to write the adaptation. But there was one key condition: His play could not “derogate or depart in any manner from the spirit of the novel, nor alter its characters.” And therein lies the problem. Ms. Lee is now dead, so it’s impossible to know what she would make of Mr. Sorkin’s script. But her longtime lawyer has read a draft, and is unhappy. Earlier this month, Ms. Lee’s estate sued Mr. Sorkin’s producer over the project, alleging that Atticus Finch is too mean, Scout and Jem are too old, and Calpurnia is too opinionated, among other issues...Rebecca Tushnet: My own sense, having read the complaint, is that it includes a mix of valid concerns about anachronism and character arcs with highly contestable interpretations, ones we have no real way to know whether Lee would have shared.

  • Trump’s ‘Fake News Awards’ could violate ethics rules

    January 16, 2018

    Every awards show has its critics, but President Donald Trump’s much ballyhooed “Fake News Awards” has drawn attention from a group beyond the usual peanut gallery: ethics experts who say the event could run afoul of White House rules and, depending on what exactly the president says during the proceedings, the First Amendment...Rebecca Tushnet, a First Amendment professor at Harvard Law School, said that any sort of threat — including those similar to the ones Trump has previously made — would be a problem. “Part of what the First Amendment is about is we want to avoid a chilling effect,” she said. “If NBC curtails its coverage as somebody reasonably might do after the president says he wants to go after you, he doesn’t actually have to do it to create the harm that the First Amendment is designed to combat. The threats themselves are problematic.”

  • Should the Government Get to Define ‘Native-American’ Art? One Woman’s Free Speech Fight

    November 16, 2017

    Peggy Fontenot has had a successful career as a Native American artist working in beading, silver jewelry and black-and-white photography. She's won numerous awards at art shows and has shown her work at top-tier museums. Today her career is in jeopardy because of a 2016 state law that says only members of federally-recognized tribes can market their work as "Native American" or "Indian made." Fontenot is a part of the Patawomeck tribe, which is recognized only in the state of Virginia. Now she's suing the state on the grounds that the law violates her First Amendment rights. "To call every state-recognized tribe fake and illegitimate is just broad sweeping and wrong," Fontenot told Reason...Rebecca Tushnet, a Harvard law professor, says the Oklahoma law may have been poorly crafted, but was well-intentioned. She says fraud in the Native American art market is big problem.

  • Cashing In On Crimson

    November 16, 2017

    ...The Harvard Trademark Program licenses the University’s trademarks and investigates unauthorized use of the Harvard name. Within the College, the Office of Student Life places careful restrictions on how a student group can claim Harvard affiliation. Similar bodies exist for the University’s other schools. “The law here is actually a little murky because in general, you do have the right to say true things,” says Rebecca L. Tushnet ’95, a Law School professor who specializes in trademark law. “But Harvard can get around your right to say true things by making it part of the deal—that if you want to be recognized by the University, and if you want access to these other campus resources, you have to agree to their guidelines for using the Harvard name.”