There’s been plenty of scrutinizing of Solicitor General Elana Kagan’s record in the wake of her Supreme Court nomination by President Obama yesterday.That includes her record on entertainment industry issues, which, as Eriq Gardner of Reuters points out, may raise concerns for Hollywood.
Namely: intellectual property.
Gardner cites Kagan’s 2003-2009 tenure as dean of Harvard Law School, during which she recruited “Lawrence Lessig and others who take a strongly liberal position on ‘fair use’ in copyright disputes.” She also wrote a letter to the U.S. District Court in support of a law class that was working on a file-sharing defence.
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 criticised Cablevision for limiting the scope of its arguments.
To be fair, Gardner points out that “this isn’t quite enough evidence to predict what kind of U.S. Supreme Court justice she will be,” and that Kagan is a fervent free-speech supporter.
But indeed, copyright laws continue to be a growing concern in Hollywood, as the illegal downloading and streaming of movies—combined with the popularity of Redbox and Netflix—cut into entertainment studios’ at-home market.
Will Hollywood come out against her?
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