Rebecca Tushnet

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.

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.”

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.

... 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.”

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.”

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.”

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.

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.

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.

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.

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.”

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.

...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.”

To get the U.S. Supreme Court’s attention these days, try saying your speech rights are being violated. Whether the underlying topic is abortion, elections, labor unions or wedding cakes, the First Amendment is starting to dominate the Supreme Court’s agenda..."The current court interprets the First Amendment more expansively in many ways than it did in the past," said Rebecca Tushnet, an expert on the First Amendment who teaches at Harvard Law School. Although First Amendment claims have long had more "charisma" than other constitutional claims, "the gap may be getting even bigger," she said.

On their own, computers don’t know that it’s bad to treat racists or anti-Semites as just another niche marketing demographic. But Facebook and Google aren’t deploying enough human eyeballs to prevent the misuse of their ad systems. Instead, they’ve been making money off it...Facebook and Google, in contrast, have consciously decided to offer ads, via automated sales platforms, to algorithmically identified interest groups. Because of narrow targeting, people who might otherwise spot a misleading ad, and raise a ruckus about it, may never see it in the first place...“If they’re just passing along content from someone else, they can’t be held liable,” says Harvard Law School professor Rebecca Tushnet.

Taylor Swift has made it clear to the world she controls her brand, and one tool the singer leverages regularly to achieve this goal is trademark law. Swift's team has been regularly filing trademark applications for lyrics and other slogans under her holding company, TAS Rights Management LLC, striking down infringers in the process. But does it really work, and is this approach for everyone?...Enforcing a trademarks can be more difficult than obtaining one, though, especially in the digital age...As Harvard Law School Professor Rebecca Tushnet put it, “It looks bad to sue your fans if they're doing it because they are your fans.”

Amid the unwelcome glare of the Sept. 11 shooting death of Carlos Munoz Portal — a Narcos location scout killed on the job in the rural region north of Mexico City — Netflix must also contend with an ongoing trademark dispute with the family of Pablo Escobar, the Colombian drug kingpin dramatized in the hit series...According to Rebecca Tushnet, a Harvard Law School professor who focuses on copyright and trademark law, it's unlikely that Escobar Inc. could have a trademark claim to "Narcos" — a word which has come to mean anyone involved in the drug-cartel trade. "It's possible to have trademarks that are the same for different goods and services. For example; Delta Airlines, Delta Dental, Delta Faucet," Tushnet says. "But at least some of the goods and services in the applications are overlapping.

...Now Google is a brand worth an estimated $113 billion, and the word “google” is often used as a verb meaning “to search online.” Two entrepreneurs — who are not quite on the level of Page and Brin — are trying to exploit the popularity of the term, saying it has become so common that Google should no longer have a monopoly on its own name....“Consumers are in charge of the language,” Harvard law professor Rebecca Tushnet told TheWrap. “Whatever they think is a generic term for a product or service, is.”

They said they had come to stand up for free speech, but in the end, their invited speakers addressed only a small group of sympathizers, on a bandstand surrounded by barricades, far from the throngs of counterprotesters, who could not hear them at all. By 12:45 p.m., only 45 minutes into their official program, organizers of the Boston Free Speech rally ended the event and were escorted by police out of the park, to chants of “Go home, Nazis” from the crowd. A Facebook post for the event listed 14 speakers and was scheduled to last for two hours...Those who study and advocate for the First Amendment were split on the city’s actions. “Free speech doesn’t guarantee that anybody listens to you,’’ said Rebecca Tushnet, a First Amendment specialist at Harvard Law School. She said the ideas of the rally came across because of the heightened attention to it.

The American Civil Liberties Union is suing Metro, alleging the transit agency’s restrictions on “issues-oriented” advertisements violate the First Amendment...Rebecca Tushnet, a professor of First Amendment law at Harvard Law School, said the ACLU’s case against Metro is “extremely strong.” “They [WMATA] do seem to be acting pretty inconsistently, and they seem to not have a clear policy,” she said. “For a government institution that decides to have advertising, for better or for worse, you can’t have your standards for what is allowable based on the identity of the person in the advertisement.”