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."
Finally (Score:3, Interesting)
A story on the Supreme Court appointment that's actually News for Nerds rather than Republocrat propaganda!
Re:technology trumps law (Score:3, Interesting)
In the end, it is not going to be a question of whether or not the law can defeat technology -- it will be a question of whether or not the government can sustain an active effort to police sharing. It would not be terribly hard; there are police departments that are self funded in the war on drugs, as they are allowed to keep the proceeds from sales of confiscated property from drug raids, so perhaps the "piracy police" will be allowed to do something similar. With the amount of power the copyright lobby has in our government, I really do not think it is a huge stretch, and I am sure that private prison operators would love a new chance to expand their business.
No, technology cannot be defeated by the law, but the battle may make our lives and our society much darker.
Re:Good for Nerds, I think. (Score:3, Interesting)
Unfortunately, much of Lessig's argument is based on his personal knowledge of her, and lacks evidence about what her political positions/ideology actually is. He even concedes at the end of the article that by replacing stevens, she will move the court further to the right, which wouldn't be so bad except for the fact that the current court is already pretty conservative.
http://www.salon.com/news/opinion/glenn_greenwald/2010/04/27/lessig/index.html [salon.com]
Re:Bad on software patents (Score:5, Interesting)
Except that the justices who have moved most to the Left have been the ones appointed by Republicans.
John Paul Stevens is an example of that. He was appointed by Gerald Ford and sold as a conservative. He is arguably the furthest Left of any Justice currently sitting on the Court.
But maybe you have a point. Recent Republican presidents have appointed justices so far to the Right that there's really no place for them to go but Left.
Robert Bork would almost certainly be considered not conservative enough by today's Republicans because he took the 2nd Amendment literally and believed it only applied to "well-regulated militias" and did not give everybody the right to pack heat.
Question (Score:2, Interesting)
Re:Heh... (Score:3, Interesting)
So you usually support views and laws that benefit someone else to your detriment?
If I'm being a douche about something, yes, I do support laws that benefit someone else at my expense.
Sending Youtube and other websites takedown notices to remove five minute clips from movies (i.e. free advertising) is a douche move. Not allowing me to show a movie to my family because it has too many members and qualifies as a "public performance" is a douche move.
Laws protecting fair use are appropriate and needed.
Re:Bad on software patents (Score:3, Interesting)
And he was a on cable news yesterday speaking in favor of her nomination and confirmation.
Kagan and Prosecutorial immunity... (Score:4, Interesting)
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 [scotuswiki.com] 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.
Re:Good (Score:4, Interesting)
She had a boss. Her boss sets the tone of what he wants and why. Also, she was supposed to reflect the interests of the US government as best she could (which is broken in itself, as she should represent the US people, but that's not how it works) and did so.
The president doesn't bow to the will of the people. He is to do what's best regardless of what others think. He can't be fired. He answers to no one (assuming no laws are broken). And for him to do something "because it's his job" stops when the oath is taken. No one could ever argue it was Bush's job to invade. If Congress declared war (and they didn't) then one could argue that it was his job. But there was no declared war, so he had no job related duty to invade.
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.
That's why it's so hard for senators to go on to president. They made fun of Kerry for "I actually did vote for the $87 billion before I voted against it." But that's exactly what happens. For political, personal, or financial reasons, people change their minds. The bills get a rider or are changed such that you were on the fence yes, then on the fence no, so you flip-flopped. That's politics. The Senate is much more an old-boys network where votes change that way (smaller and with more longevity than the House). Lawyering is the same way. If you ever defend a guilty person (and there isn't a defense lawyer that doesn't) you are arguing to release someone who is guilty. That takes a dedication to the system above the dedication to the truth or justice. That's how our system works. To fault someone because they do their duty to the system as required seems absurd. If she didn't take the position that's "wrong" and run with it, she'd have been fired. And taking the position she did, even if she doesn't agree with it, is still considered ethical and the proper thing to do. From your statements, you'd exclude all public defenders, all defense lawyers, and almost all prosecutors from ever serving just because they did their job as expected and required.
It sounds like you either hate the adversarial judicial system we have, and are taking it out on her because she's in the public eye right now, or that you don't like her for some unrelated reason and are using this as an excuse when it applies to almost every lawyer universally and you aren't applying it to them.
Re:And I'M nervous about Kagan's fair-use views... (Score:3, Interesting)
Personally, I am not overly concerned about Kagan's fair-use views, whatever they may be (ultimately I think that problem will and should have a legislative solution), but I think there is a snowball's chance in hell that she will be as or more liberal than Stevens on executive power. Until being appointed Solicitor General, she had no qualification to sit on the Supreme Court, so one might almost wonder if Obama appointed her to the position so he could nominate her to the Court. But why would he go to all that trouble to pick someone who will toss out all of his own national security policies? The arguments Kagan advances in court aren't necessarily her own, but if taking a harder line than Bush on state secrets and executive power really bothered her, she could have resigned.
Those issues aside, it is ridiculous that everyone is reading the tea leaves and slaughtering chickens in an attempt to determine Kagan's actual positions (on Fair Use or anything else), and making cases that it is impossible to prove beyond a reasonable doubt (or perhaps with a preponderance of evidence?) that she is not actually liberal, etc. There is a presumption of innocence, but arguing for a presumption of liberalism strains credibility. Instead of arguing that Kagan might be (is probably) liberal (or in favor of personal freedom, civil liberties, checks on executive power, etc.), people should be asking why the nominee is not someone about whom there is no doubt. The only reason is that this is how Obama wants it to be. If not people in general, then at least Slashdotters should take this position, since (aside from all of the drug-warriors who have crawled out of the woodwork for this thread) I think the bulk of Slashdot readership believes in personal freedom, not in, say, executive assassination of American citizens, warrantless wiretapping, indefinite detention of American persons without judicial review, or an unlimited state secrets privilege and effective government immunity from any legal challenge. Compared to those issues, fair use is irrelevant. Congress could overthrow the Supreme Court's rulings in that area with more legislation anyway.
This summary (and article) is retarded, anyway, because as the writer admits, "Not a whole lot is known about Kagan's judicial philosophy." This alleged "nervousness" is based on Kagan's hiring of Lawrence Lessig, her close personal friend, while Dean of Harvard Law School. She also famously presided over the hiring of many conservative/Republican professors and admires Justice Scalia, so to claim that hiring Lessig reveals her stance on copyright is a dubious argument at best. Everyone has as much right as Hollywood to be nervous about her Fair Use views, since there is no way to tell what they actually are. How about her judicial philosophy? The precedent there is her work as Solicitor General, which would not hearten anyone except authoritarians (but really does not definitely reveal anything).
Finally, let us examine the theory that Kagan is (secretly) sympathetic to fourteenth amendment "equal protection" arguments for same-sex marriage. The primary argument in favor of this is that she might be a deeply closeted lesbian. Wow. The Whitehouse categorically denied that she is a lesbian (!), but what if she were? We know that all the recent examples of outed, formerly deeply closeted gay politicians (Republicans) have made their names as great defenders of gay rights (Defense of Marriage Act, etc.). The only real evidence one way or the other is her confirmati