Intellectual Property

Kagan on IP


A wise guy, eh?

The Hollywood Reporter's Eriq Gardner says the nomination of Elena Kagan to the U.S. Supreme Court may be bad news for Tinseltown and good news for Downfall parodists. The jurist without a paper trail, Gardner writes, does seem to take a broad view of fair use:

Hollywood's biggest worry about Kagan might be her philosophy on intellectual property matters. As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school's Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on "fair use" in copyright disputes…

Kagan got her biggest opportunity to showcase her feelings on IP when the U.S. Supreme Court asked her, as U.S. Solicitor General, to weigh in on the big Cablevision case.

Hollywood was upset when Cablevision announced its intention to allow subscribers to store TV programs on the cable operator's computer servers instead of a hard-top box. The introduction of remote-storage DVR kicked off furious litigation, and the 2nd Circuit overturned a lower court ruling by saying that the technology wouldn't violate copyright holder's rights. The studios appealed to the Supreme Court.

In Kagan's brief to the high court, she argued the justices shouldn't take the case and trumpeted fair use. She went against broadcasters there and even criticized Cablevision for limiting the scope of its arguments.

At The Atlantic, Niraj Chokshi says not so fast, and rounds up a range of tech commentators questioning whether Kagan has any views on fair use at all.

The Hollywood Reporter piece also draws many comments from anti-Kaganists, which include along with the expected cheap insults ("I am convinced Kagan is actually Martin Short in a fat suit," says Bubba Hercules), some serious objections to claims such as Gardner's prediction that Kagan will be "an extreme supporter of free speech under the First Amendment."

That high number of detractors may be a function of the piece's having been linked by Drudge, who also provides the clearest support yet for Cavanaugh's General Theory of 33.3: a Rasmussen poll in which exactly 33 percent of respondents say Kagan should be confirmed, 33 percent say she shouldn't, and 34 percent are undecided. Is the theory proven at last? Probably not. The same quality that makes Kagan the ultimate Supreme Court nominee—her almost total lack of any discernible beliefs—makes her a too-easy test case.

Reason's three reasons why YouTube shouldn't censor Downfall parodies:

NEXT: Tonya Craft Acquitted

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Your first link is to Hitler stuff, not the Hollywood Reporter story.

    Kagan-on-IP-wise, I remember her and Summers teaming up to help Laurence Tribe get away with plagiarism. And we know she doesn’t like the 1st Amendment much.

    So if she likes you, you can steal shit. If not, the “social cost” is probably too high.

  2. Classifying Lessig’s stance on IP as liberal is fair, but his work on the Creative Commons is a boon for liberty from over-burdensome government regulation.

  3. Where do Democrats keep their stash of women who look like lesbians appointees?

    1. Why, you interested? I got a couple spare ones in my basement. I’ll let ’em go, cheap. Low mileage on both.

    2. Apologetic: where do conservatives keep their stash of bigoted fools? Oh, of course – California.

  4. Elena Kagan and Janet Napolitano come from a planet populated by fat men without penises

    1. it’s called 5-alpha reductase deficiency

      1. well i guess fat people need to eat more….

        ….5-alpha reductase

      2. yes, that’s what I have.

    2. And I am their lord, Amen.

  5. Dude that is one ugly Chick. She may just be the undisputed Queen of Ugliness!


  6. I could hug you, Lou.

  7. Oh Christ, you fuckers are on this board, too? Why don’t you two just get a fucking room.

  8. Definitely a guy.

  9. Despite a lack of a paper trail, all the evidence points to her being a typical leftist, including her fawning college thesis on socialism.

    Still, if she turned out to be Souter in reverse, I’d laugh my ass off.

  10. That high number of detractors may be a function of the piece’s having been linked by Drudge

    Ya think? Drudgeians are psychotic. It’s funny when he links to a British source, the locals don’t quite know what to make of the clinically paranoid ranting that has been funneled in.

  11. Is this the best you’ve got? Reason should have an anti-Kagan story up every few hours.

    1. Gosh, CE… are you insinuating that certain people should be immune to derision and/or criticism?

  12. I keep having to do double takes to see if y’all are posting pictures of David Mitchell.

  13. Terrifying that many of you are likely lawyers. People with advanced degrees who have managed to remain sexist, racist, bigoted and generally ignorant – now that’s impressive. You have to really TRY for a goal like that.

  14. People with advanced degrees who have managed to remain sexist, racist, bigoted and generally ignorant – now that’s impressive.

    This thread is supposed to be about Kagan, but I guess if you want to talk about Obama, I can’t stop you.

  15. Nice alt-text.

Please to post comments

Comments are closed.