Rebecca Tushnet

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.

Puppy toys should have nothing to do with car engines. But a recent court complaint says Amazon.com 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.

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 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.

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.

... 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 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 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.”