Rebecca Tushnet

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…

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…

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…

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.

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."

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."

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."

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.

“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.

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.”

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.”

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.

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.”

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.

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.”

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 Booking.com 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 dot.com 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 Hotels.com and Mattress.com, and the U.S. Court of Appeals for the Ninth Circuit has found AOL’s Advertising.com 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.