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cindy25
05-11-2010, 08:14 PM
http://thresq.hollywoodreporter.com/2010/05/kagan-supreme-court-hollywood.html

Hollywood may have some reason to be nervous about President Obama's nomination of Elena Kagan to be the next U.S. Supreme Court justice.

Not a whole lot is known about Kagan's judicial philosophy, which in some ways, makes her the perfect pick to win confirmation by the Senate. Her record on issues the industry cares about, though, isn't entirely opaque.

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.

Most notably, during those years, Professor Charles Nesson at the Berkman Center represented accused file-sharer Joel Tenenbaum in the defense of a lawsuit by the RIAA. Professor Nesson led his cyberlaw class in alleging that "the RIAA is abusing law and the civil process" with excessive damage claims in piracy cases. It was Kagan herself who wrote a personal letter to the U.S. District Court to help certify the students.

Ironically, the Obama administration later weighed in on the side of the RIAA in the case. But it was before Kagan was fully confirmed as U.S. Solicitor General. At the time, Professor Nesson expressed some doubts about whether Kagan would back the government's amicus brief and also called her "enlightened" on these issues.

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.

Of course, this isn't quite enough evidence to predict what kind of U.S. Supreme Court justice she will be. At Harvard, she was famous for ingratiating herself to professors of all political stripes, so who knows if Nesson has a good read on her? Working in the Obama administration, she also surrounded herself with entertainment industry advocates, including as her assistant, Ginger Anders, who worked on an amicus brief in the Cablevision case for a coalition that included the RIAA.

And finally, Hollywood's got at least one reason to cheer. Her history in academia suggests she'll be an extreme supporter of free speech under the First Amendment.

slothman
05-11-2010, 08:22 PM
If she is for fair use then I like her already.

cmasslibertarian
05-11-2010, 08:24 PM
If she is for fair use then I like her already.

also for indefinite detention without a trial

chudrockz
05-11-2010, 08:29 PM
So you can rot in prison for eternity with no hope for habeus corpus, but at least you'll be able to download all the music you want!

cindy25
05-11-2010, 08:32 PM
here is the prequel

http://thresq.hollywoodreporter.com/2010/04/was-justice-stevens-a-friend-or-foe-to-hollywood.html

JUSTICE STEVENS, THE MAN WHO SAVED HOLLYWOOD FROM ITSELF

Mon Apr 19, 2010 @ 09:47AM PST
By Matthew Belloni

As President Obama zeroes in on a replacement for retiring Supreme Court Justice John Paul Stevens, Hollywood should be paying close attention. Stevens' record serves as a perfect example of how much influence a single vote can have on the entertainment industry.

Joe Mullin at Corporate Counsel has posted an interesting analysis of Stevens' impact on intellectual property law, and it includes a nice chunk devoted of the bowtied jurist's heavy footprint on the modern copyright industry.

Generally, Stevens saw both copyright and patent law as "balancing acts that need to be kept in check by the Supreme Court," dissenting, for example, to the decision that allowed Congress (at the studios' strong urging) to retroactively extend copyrights in 1998.

But his lasting legacy will be as the man who saved Hollywood from its own fears. Stevens wrote the majority opinion in 1984's Sony v. Universal City Studios, the so-called Sony/Betamax case, which legalized VCRs against Hollywood's hysterically short-sighted objections. The industry wanted VCRs killed because execs feared they would turn moviegoers into full-time copyright pirates. No stranger to hyperbole, MPAA head Jack Valenti famously compared the VCR to the Boston Strangler. (If only Jack had lived to see the iPad.)

But Stevens couldn't understand why the industry should be able to squelch a device with a "substantial non-infringing use." His opinion, the first to grapple with "fair use" issues in the technology age, paved the way for the widespread adoption of home video. That opened up a market that -- despite the industry's initial objection -- ended up driving Hollywood's exponential growth through the '80s and '90s. And it almost didn't happen.

Mullin notes:

Justice Stevens's contribution to the ultimate decision in Betamax extended well beyond writing the opinion. It was actually his negotiating skill that pulled together the five-vote majority that allowed home video recorders to be sold and used without interference from entertainment industry copyright holders. When he wrote the first draft of his opinion, Stevens thought he was writing a dissent -- and possibly a lone dissent at that. Even more remarkably, the justices' initial debates in the case made it clear that Stevens was the only one of the nine who believed that the "fair use" doctrine gave consumers a right to make personal copies of copyrighted content for home use.
The result was a 5-4 decision that allowed a single copy for personal use. It also established the framework that guided the court in 2005's MGM Studios v. Grokster, which ushered copyright law into the digital age and held, unanimously, that website operators could be sued for enabling mass infringements by others.

It's hard to imagine how the past 25 years of IP law would have played out had the VCR been ruled illegal. Sure, Congress could have responded with a law to help the 3 million people who had already bought VCRs by 1982. Or maybe the development of modern copyright law would have been totally different.

Regardless, Justice Stevens made Hollywood studios a lot of money by ruling against them. When he retires, the moguls should send the 89-year-old jurist to Aruba. And when he gets there, make sure there's a new Blu-ray p

cmasslibertarian
05-11-2010, 08:56 PM
So you can rot in prison for eternity with no hope for habeus corpus, but at least you'll be able to download all the music you want!

I lol'd.