Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement; TechDirt.com, 5/17/10

Mike Masnick, TechDirt.com; Princeton Demands Website Remove Elena Kagan's Thesis; Claiming Copyright Infringement:

"Obviously, there's been lots of talk about Supreme Court nominee Elena Kagan in numerous areas. There have been various reports concerning Kagan's supposed views on copyright, but those seem pretty blown out of proportion from what I've seen and in talking to folks who know Kagan. She was a big supporter of the Berkman Center at Harvard, but that was part of her job. Other than her recommendation in the Cablevision case, there doesn't seem to be much to go on. In fact, I'm considerably more concerned with the idea that one of the leading contenders for Kagan's current job of Solicitor General is one of the entertainment industry's favorite legal attack dogs who led the industry's case in Grokster and was a major player in the Jammie Thomas trial before being appointed to the Justice Department (where he didn't last very long before moving over to the White House as associate White House counsel). Still, if Kagan really is a big supporter of fair use, you have to wonder what she thinks of the following situation.

With everyone digging deeper and deeper to find out more about Kagan, the website Red State apparently dug up her undergraduate thesis and posted it to their website... leading Princeton to demand that the thesis be taken down -- not, of course, for political reasons, but copyright ones. The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan's senior thesis online.... Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Of course, ordering that the document be pulled down pretty much guarantees that it will get spread more widely -- and there's definitely a journalistic reporting defense for posting the document (though, I'm not particularly convinced that anything anyone wrote in college has much meaning once they've spent a few decades outside of college). And, of course, in trying to get the document taken down, it's just going to lead conspiracy-minded folks to think there's more to the document than there is (in actuality, it's a rather bland historical analysis, but you wouldn't know that from what some sites are claiming about it). But from a journalistic standpoint, it seems you could make a decent argument for fair use in distributing the document. In fact, publications like Newsweek are already sharing parts of the thesis as well (mostly to debunk the hysteria around it). It's difficult to see what Princeton gained in issuing the takedown notice, other than to rile up people."

http://www.techdirt.com/articles/20100517/0000079435.shtml

Why Hollywood Should Be Nervous About Court Pick; ABCNews.com

Eriq Gardner, ABCNEWS.com; Why Hollywood Should Be Nervous About Court Pick:

"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 Recording Industry Association of America, the trade group representing the major U.S. record labels. 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.

Paradoxically, the Obama administration later weighed in on the side of the RIAA in the case. But that 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."

http://abcnews.go.com/Entertainment/wireStory?id=10610313