A few days ago Eriq Gardner of The Hollywood Reporter wrote an article that warned Hollywood of the reprecussions that would occur should the Senate confirm President Obama's Supreme Court nominee, Elena Kagan.While Mr. Gardner correctly asserts that much isn't known about Kagan's philosophy, is there a reason for movers and shakers in the entertainment industry to be worried about what Kagan's effect on the Supreme Court will mean for copyright protection?
The issue of "fair use" in copyright law is hardly concept that has been so precisely defined by courts so as to leave little room for interpretation. In fact, judicial history indicates almost the complete opposite. While Kagan was the Dean of Harvard Law School between 2003-2009, she recruited Lawrence Lessig and others who have a very liberal version of fair use for copyright holders.
To hear his opinion in more detail, watch the video below from March 6, 2010, in which Mr. Lessig delves into understanding fair use.
Kagan is most notorious in the IP world for her opinion on the infamous Cablevision case, in which she wrote from her role as U.S. Solicitor General. The Cablevision argument arose when Cablevision announced its intention to enlist a Remote Storage Digital Video Recorder system (RS-DVR) so that customers would actually be storing their recorded programs on Cablevisions internal servers rather than on a physical box in their own homes. The 2nd Circuit famously overturned the trial court in holding that this was not a violation of copyright holders rights in 2008. Naturally the case was appealed to The Supreme Court, which is where Kagan's opinion came in, where she recommended that SCOTUS not hear the case.
What do you think? Will Kagan push against Hollywood in protecting copyright holders rights, fight for stronger protections for First Amendment rights, or will it even matter because her confirmation won't get approved by the Senate? Should Hollywood be afraid?
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