Everybody’s talking about Kagan. Elena Kagan, that is — President Obama’s new nominee for the U.S. Supreme Court. I have a feeling that the Recording Industry of America (RIAA) in particular will be paying attention due to her history on the subject of fair use, especially since this history includes the following (as reported by Eriq Gardner at The Hollywood Reporter):
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.
That stance on fair use could be a distinct boon to the radio industry in the ongoing battle against the Performance Rights Act (PRA). Add in prior actions adversarial to the RIAA and you can see why they and their allies could well be nervous of her prospective position.
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.
So, it is reasonable to have hope of her support if she makes it to the Supreme Court, especially in light of nearly a century of proven economic benefit shown to artists through free airplay. I would think the fair use argument stands on solid ground when that stance is taken.
Of course, her stance on other issues could complicate things for broadcasters, but I have not yet concluded my research in that regard. No matter what, it is worth carefully watching as she goes through the vetting process. If she does get the position, I would like to think that we would win back some ground.