Kagan on IP


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: