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Hollywood Nervous About Kagan's Fair Use Views
Of the many commentaries and analyses springing up about Obama's Supreme Court nominee, this community might be most interested in one from the Hollywood Reporter. Reader Hugh Pickens notes that Hollywood may have reason to be nervous about the nomination of Elena Kagan to be the next US Supreme Court justice. "As dean of Harvard Law School from 2003 to 2009, Kagan 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. And Kagan got an opportunity to showcase her feelings on intellectual property when the US Supreme Court asked her, as US Solicitor General, to weigh in on the big Cablevision case. 'After Cablevision announced in 2006 that it would allow subscribers to store TV programs on the cable operator's computer servers instead of on a hard-top box, Hollywood studios went nuts, predicting that the days of licensing on-demand content would be over,' writes Gardner. Kagan's brief compared remote-storage DVRs to VCRs (PDF), brought up the Sony/Betamax case, and lightly slapped Cablevision on the wrist for not making fair use a bigger issue. 'It sounds to us like Kagan would love the Court to determine when customers have a fair-use right to copy, which should cheer those on the copy-left at the EFF, and worry many in the entertainment industry.' On the minus side, Kagan has surrounded herself with entertainment industry advocates in the Justice Department."
A story on the Supreme Court appointment that's actually News for Nerds rather than Republocrat propaganda!
Pirate Party UK
I hope they're nervous. They need a little "fear" to keep them honest (or at least as honest as they can be considering they are the some of the greediest bastards on earth).
Looks like both Dem's & Rep's aren't exactly thrilled with everything Elena Kagan stands for. It always sounds like a good choice when neither side is happy with the possibilities.
Her name is on the Bilski brief submitted by the Obama administration:
No extant field of technology or industry--including software and diagnostic methods, the two fields addressed by numerous amici--is wholly excluded from patent protection under that approach;
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technology changes law. technology does not fit into the confines as defined by law, law adjusts and accommodates to new technology
and when law pits itself against technology, law always loses. technological progress has destroyed and swept aside so many legal, social, and political structures in this world
why does anyone believe hollywood stands a chance? the internet has permanently changed media distribution, in favor of the consumer. all that media companies can do is adapt, or die. of course, in the adaptation period, plenty of absurd attempts at preserving the legal status quos of past dead technological eras will be attempted, but this is just denial
in the end, we, the consumer, win. because technology empowers us to route around the old status quo. and if the law is pitted against the technology, then it also empowers us above the law (in this one narrow issue)
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I'm failing to see where she would be influenced by 'payola'. It's true that politics play a role in getting onto the Supreme Court. Once on the Supreme Court the only way she can lose her job is if the House of Representatives impeaches her, the Senate tries her, and she is convicted by a super-majority vote. Her salary can never go down. She will not have to face election. She will be guaranteed employment for life.
The only way she could accept payola is if she took an outright bribe. That's not unheard of as Clarance Thomas accepted a $1 million advance on his biography one week before issuing his ruling in Eldred v Ashcroft. Nevertheless, accepting a bribe is one of very few things that could ruin a Supreme Court justice's career.
Kagan: Hey, Barack. This software patent's issue is a real head scratcher. I can't find your stance on it. Can you remind me of it?
Obama: Elena, Elena, I'm busy. To be a patentable process, innovations should involve significant extra-solution activity i.e. activity central to the purpose of the claimed method. And don't forget that no patent can wholly pre-empt the use of a fundamental principle - and I don't just mean that a field-of-use restriction will suffice, I want to be sure that the algorithm can still be used for other purposes even in that same field.
Kagan: Thanks, I'll go fluff that out and add references. (done) Sorry to have bothered you, I simply don't have the power to come up with my own viewpoints, so I wanted to clarfy what yours are.
(...or just maybe it's not a purely clerical role and there's a bit of Kagan in the document she wrote and got approved by the president.)
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A great HuffPo Piece by none other than Lawrence Lessig, Mr. Creative Commons himself.
Non impediti ratione cogitationus.
Elena Kagan doesn't run the Justice Department, Attorney General Eric Holder does.
I don't see what's "liberal" about fair use.
I think people should stop trying to shoe-horn every single issue into a liberal/conservative spectrum.
You refer to the prophecy of The One who will bring balance to the Copyright. You believe it's this girl?
think about the changes the gun wreaked on the feudal system
think about the changes the printing press wreaked on traditional religious/ monarchical power structures
think about the changes the nuclear bomb wreaked on warfare and international relations
now think about the internet and its effects on copyright law
the technology came, and changed everything. time and time again
i'm not talking about civilian restrictions on dynamite or radar guns, these are tiny dots. i'm talking about the larger technological themes: the introduction of electronics, the introduction of sailing ships, the introduction of the cotton gin, etc. surely you can see how technology alter society and the law in ways no one can foresee or even understand when the technology is introduced. its not like the guys fiddling with the arpanet in the 1960s said "hey, lets destroy the recorded music industry", but that's what their invention is doing
surely you can see technological change trumps existing law, and law must alter itself and adapt
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
"that is, the most addictive+inebriating: cocaine, heroin, meth, etc (marijuana should be legal)"
What about alcohol? Withdrawal effects from alcohol are worse than from opiates -- in fact, they can be deadly without medical supervision. We sell tobacco to teenagers, yet tobacco dependency is more easily formed and more difficult to break than cocaine dependence.
"its not a war, its a maintenance function of civilization, like taking out the trash every thursday"
Well, let's see. Cocaine was first made illegal because people thought that when black men used cocaine, they would become unstoppable even with a gun. Yes, that sounds like a maintenance function of civilization to me...except for the racism part. Opiates, like heroin? Made illegal because of a belief that Asian immigrants would bring their habits with them to the USA -- even though heroin could be legally purchased over the counter, as marketed by Bayer. Yup, more maintenance, if we ignore the whole racism thing.
Unlike you, I actually know the history of the war on drugs, and it is not pretty. It is one racist act of congress after another, mixed with corporate lobbying, and recently we can add a profit motive for police departments. We are not talking about drug regulation here, nor are we talking about efforts to keep people healthy -- this is an effort to imprison people on a mass scale, particularly immigrants and black people. People are serving longer prison sentences for non-violent, drug related crimes than would be typical for a murder case.
The goal is not to "win," at least not as President Reagan defined victory (a "drug-free generation"). The goal is to increase the profits of pharmaceutical, alcohol, tobacco, prison, and firearms companies, and to keep an ever expanding police force employed. Racism is a convenient means to this end: you can arrest scores of black people for drug offenses (in some localities, one third of the black men are incarcerated), and nobody in the middle or upper classes will oppose it, especially not after seeing one image of a dangerous black man after another.
Regulation and health are things I am all for. You can regulate drugs without throwing millions of people in jail or creating police forces that are as heavily armed as the military. You can protect the general health of the population without propaganda and racism. The war on drugs is not helping our society, and I hope you understand that.
Palm trees and 8
SCOTUSBlog posted a nice, hysteria-free overview of Kagan's career a few days ago. It's well worth a read, and the authors seem to know a thing or two about the courts (unlike most reporters and pundits who have been covering the story).
If you read up on her career, you'll see that she has a great deal of respect for existing precedent, and doesn't seem to have allowed her own personal opinions to interfere with her past jobs.
-- If you try to fail and succeed, which have you done? - Uli's moose
... they should love Obama's pick for her replacement as Solicitor General.
That is all.
1) Recruiting people does not mean you share their ideological views. Indeed, one of the selling points of Kagan (according to her supporters) is that in spite of her supposed liberal views she was able to recruit people from across the ideological spectrum, including conservatives, to Harvard Law School.
2) As the Solicitor General, you are a lawyer for the government. You argue their cases. We should not confuse positions she took as the Solicitor General with her own personal opinions on the cases.
If anyone wants the real story on Kagan (she's woefully unprepared for the Supreme Court) please read what Glenn Greenwald has recently been writing about her http://www.salon.com/news/opinion/glenn_greenwald/2010/04/13/kagan and a debate yesterday http://www.democracynow.org/2010/5/10/progressives_divided_over_obamas_nomination_of
> And Kagan got an opportunity to showcase her feelings on intellectual
> property when the US Supreme Court asked her, as US Solicitor General, to
> weigh in on the big Cablevision case.
Not her views. She was repersenting the adminstration. He personal views may or may not be the same as those she presented on behalf of her employer.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
She also argued that prosecutors who deliberately manufacture evidence to convict innocent people should not be civilly liable for their actions.
Before you use her participation in support of the Pottawattamie prosecutors to extrapolate her entire character, I recommend reading the Pottawattamie County v. McGhee article over at SCOTUSWiki. Among other things, you'll find out that even the McGhee and Harrington side of the case agrees that prosecutors "enjoy immunity when they knowingly introduce false testimony during trial" based on the 1976 SCOTUS decision in Imbler v. Pachtman. All the legal wrangling was over drawing lines across contiguous situations, like whether or not that immunity extends to pre-trial conditions. The central idea of immunity for prosecutors during trial apparently wasn't even really being questioned, because much of the lawyering world apparently believes that if you open prosecutors to liability, it'll have a "chilling effect" on their ability to pursue justice even in situations where the defendant is guilty as sin because of the threat of being buried under lawsuits.
Now, from an ethical and liberty-focused perspective, I completely agree that a lot of this is ridiculous. I think that fabricating evidence is flat-out simply beyond the job description of any state officer, and so by definition, whether or not it happened pre-trial or during the trial, it's outside of official prosecutorial duties and can and should incur criminal and civil liability. But there are beings who walk the earth who see court cases very differently than a normal citizen does, who don't operate directly on matters of ethics and policy and justice and liberty, but instead on the law as the instrument which serves those matters, and who apparently see a prosecutors role as such an important one in actually pursuing justice that it's deserving of considerable latitude. I disagree and I think there's a cultural problem here that needs to be addressed by legal means: we're apparently going to need a law stating that fabrication of evidence is explicitly outside any public duty and that no immunity of any kind applies.
I'm unimpressed by Kagan's advocacy, and think everybody should contact their Senator -- particularly if they've got one that's on the judiciary committee -- if for no other reason to highlight this issue, which hasn't received anywhere near its due attention, but flogging Kagan in particular for it probably isn't going to address a systemic problem.
Tweet, tweet.