Hollywood Nervous About Kagan's Fair Use Views 239
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."
Good (Score:5, Insightful)
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.
Re:Good (Score:2, Insightful)
The corporations only have themselves to blame. If they're unwilling to respect the populace's common-law rights like fair use, then those rights will need government protection, which means oversight. They're going to be like the kid who keeps stealing lunches, whining that the teacher's constantly watching what they're doing. Mark my words.
Re:Good (Score:5, Insightful)
It always sounds like a good choice when neither side is happy with the possibilities.
That's a refreshing bit for me right there. I'll admit that I don't follow politics much and don't really know anything about this person. But if neither dominant party thinks she's toeing the line enough then that's _exactly_ the kind of person I want on the Supreme Court.
Re:Finally (Score:2, Insightful)
technology trumps law (Score:5, Insightful)
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)
Re:Bad on software patents (Score:5, Insightful)
If she is nominated, Kagan will have to be recused from all the cases that she handled as Solicitor General of the United States. That could be a few dozen cases. The reason is that as Solicitor General, she does not have the power to come up with her own viewpoints; she represents the President's interests. This isn't an indication of what she thinks, but she's just the person in charge of arguing the President's position.
Re:Bad on software patents (Score:5, Insightful)
Of course it is. She's the Solicitor General.
But there's a big difference between when your job is to be the lawyer for the United States (in regard to SCOTUS at least) and when you are actually sitting on that highest court. We've seen lots of conservative people move Left once they get to the Supreme Court. I don't remember anyone who has ever moved to the Right.
Re:It's a bit early to say this is a good choice . (Score:5, Insightful)
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 [slashdot.org] 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.
Re:Can we mark TFA as troll? (Score:3, Insightful)
That's a pair of neat tricks called, "reporting" and"journalism."
Wonderful! (Score:3, Insightful)
Hey, it's refreshing to hear of any public official actually being in favor of Fair Use.
I don't know how it'll play out, but considering the pro-corporate stance most have taken, I'm encouraged by the fact that she even knows Lawrence Lessig and has apparently some understanding of the issues involved.
Most of the Justices would just call up Jeff Bewkes and say "Whaddya think, Jeffie? You got it! Now can you get Seth Rogan to do standup at my nephew's birthday party"? (or, in Clarence Thomas' case, "Do you really know Jenna Jameson?")
let's work that through (Score:5, Insightful)
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 [swpat.org]) 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.)
liberal? (Score:5, Insightful)
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.
Re:liberal? (Score:5, Insightful)
Re:Finally (Score:4, Insightful)
Poor Hollywod (Score:2, Insightful)
Re:technology trumps law (Score:3, Insightful)
I'm sorry, to double-post here, but the more I think about it, the is one of the most significant comments I've read on Slashdot.
The only question I have is whether or not there is a boundary condition when corporations become so powerful that are able to make nations bend to their will. Yes, the internet has permanently changed media distribution, but corporations are exerting all their power to permanently change the internet. They have already conformed government to the point that many of the institutions we take for granted could never come into existence today.
Do you think public libraries could possibly happen today if they didn't exist? "We want to make an institution that will buy books and records and movies and lend them out to people for free". They'd get laughed out of the room. If there was no Fair Use rule do you think it could come into existence in a world where a single frame of a video will be signed?
For that matter, if the internet hadn't sort of accidentally happened, I can't imagine it could be built today. The telecoms wouldn't allow it. Their first question would be "how much will we charge per connected minute?" or "how much can we charge per email?" The only reason we have an internet is because it existed and the telcos had to run to catch up and glom onto it because they saw a fortune to be made.
You've given me something to think about, circletimessquare. I thank you for that.
Re:Poor Hollywod (Score:3, Insightful)
you're not thinking about the problem correctly (Score:5, Insightful)
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
Re:there will always be a legitimate war on drugs (Score:5, Insightful)
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.
Re:Good (Score:4, Insightful)
Your logic is broken. I presume neither party would like bin Laden, but I don't think that would make him a good nomination.
Granted, I could have elaborated more. But I assumed any reader would know what I meant.
Have you heard why people don't like her?
And how much of that was actually her? Or how much of it was her job as Solicitor General? It's a far cry from arguing the position of one's employer to actually holding one's own position on such matters.
Re:It's a bit early to say this is a good choice . (Score:3, Insightful)
It's certainly a point worth of discussion. If the GOP or anyone else want's to say that supreme court justices have to have had judicial experience, they're free to make that case. Historically, judicial experience has not been a requirement. Some of the most effective justices have come from politics, not the court room, including John Marshall, Thurgood Marshall, and Hugo Black, and William Rehnquist. Qualifications, like the confirmation process itself may have changed after the Bork nomination, so it's a point worthy of debate.
However, you better believe that if the GOP had ideological gripes they'd trot those out well before raising issues about qualifications.
Re:Good (Score:5, Insightful)
Granted, I could have elaborated more. But I assumed any reader would know what I meant.
I know what you meant, but still disagree with your conclusion.
And how much of that was actually her? Or how much of it was her job as Solicitor General?
I don't think that's a good excuse because it removes all personal responsibility. Compare with "Bush didn't really think we should invade Iraq, but he only did so because it was his job." Or more recently, "Obama really wanted to close Gitmo, but he kept it open because it was his job." I don't think either of those statements are more outlandish than the executive's top lawyer arguing that speech is too free.
There's a time and a place to go along with work duties you disagree with, but there's also a time to stand up and say "this is wrong and I can't do this in good conscience." In my opinion, lobbying the Supreme Court for a position you disagree with is poor form if you eventually want people to trust that you don't agree with that position. It's bad morally, and it's bad politically.
If they're worried about Kagan... (Score:5, Insightful)
... they should love Obama's pick for her replacement as Solicitor General [salon.com].
Re:A new and useful process (Score:2, Insightful)
In Gottschalk v. Benson [wikipedia.org], SCOTUS ruled that a "process" does not include mathematical algorithms. Methods of information processing are mathematical algorithms.
Re:Bad on software patents (Score:2, Insightful)
Are free-speech advocates called "speech-nuts", are press advocates called "news-nuts" or are folks who hang out in groups called "assembly-nuts"? Of course not, rights spelled out in the Constitution are generally held up and honored, and things not in the Constitution like privacy and marriage are also generally up held and honored.
Except right to bear arms, if you support that you are a "gun nut".
The Supreme Court threw out the need to form clubs and established that firearm ownership, ammunition ownership are just as firmly established as speech and assembly.
There was nothing in District of Columbia v. Heller that would apply to DMCA.
Re:Good (Score:3, Insightful)
I think most SC justices had never served as judges prior to joining the SC, so this isn't an oddity. As far as I know, neither Rehnquist or Warren served as judges, so there's precedent for both liberals and conservatives :). It would be hard to describe either's tenure as incompetent, so obviously the lack of judicial experience is not necessarily a hindrance to being a SC justice.
Not necessarily her views. (Score:4, Insightful)
> 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.
Re:Bad on software patents (Score:2, Insightful)