Obama's Supreme Court nominee might make the RIAA and MPAA see red

Where does the new Supreme Court nominee stand on issues of importance to techies? You just might be surprised.
Written by David Gewirtz, Senior Contributing Editor

Since January 2009, Elena Kagan was Solicitor General of the United States, the lawyer who represents the Government of the United States before the Supreme Court. Now it appears Elena Kagan may soon be sitting on the other side of the bench. On Monday, President Obama nominated her to replace Justice John Paul Stevens when Justice Stevens retires this summer.

Kagan's an interesting nominee, because she hasn't served as a judge. Not all Supreme Court nominees have to be judges, of course, but the last few -- all those nominated since 2005 -- have been sitting judges.

While conservatives are going nuts trying to figure out if Professor Kagan is gay, what we geeks want to know is whether she's good for TiVo. Where does she stand on digital rights, fair use, and all the assorted drivel that's been coming out of the MPAA and RIAA over all these years?

Our government's relationship with the regressive blowhards (no, I'm not objective on this topic -- live with it) at the RIAA and MPAA has been somewhat disappointing.

RIAA and MPAA tactics

While the right might accuse Hollywood and the music industry of leaning left, the movie and music businesses are very old school and very conservative.

They've tried -- for years -- to destroy college careers, ruin grandmothers' retirements, take food from the mouths of single moms' babies, and otherwise extract their lump of flesh from fans and customers of music and movies.

Yes, music and movie (and software) piracy is illegal, but the draconian tactics of the MPAA and RIAA have been disturbing and reprehensible. Unfortunately, these tactics have been supported at the legislative level in idiotic laws like the DMCA and even in both the Bush and Obama White Houses, where entertainment industry lawyers seem to be favorite hires.

Update: I got a letter from a reader who didn't know what these acronyms meant and was quite upset about it. RIAA is Recording Industry of America, MPAA is Motion Picture Association of America, and DMCA is Digital Millennium Copyright Act. Links take you to the appropriate Wikipedia pages.

So, on the surface, you'd think Kagan would make the MPAA and RIAA litigators very happy. But, just maybe, not so much.

Next: A funny thing happened »

A funny thing happened on the way to the Supreme Court

According to The Hollywood Reporter, Kagan might actually understand the concept of fair use -- a rare trait for anyone in Washington. Even more astounding, she might actually be on its side.

According to THR, when she was Dean of Harvard Law, 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."

She also got involved in a video-on-demand fight. Back in 2006, Cablevision had this scheme where they were going to let their subscribers store TV shows on its servers, to watch later. There was no sharing of the video publicly -- it was, essentially, a TiVo in the cloud idea.

The entertainment industry lost its mind. The whole thing wound its way up to the Supreme Court and Kagan actually argued on behalf of fair use, suggesting that the Court shouldn't take the case.

So here we have a Supreme Court nominee who understands the Internet, actually knows and apparently likes Larry Lessig (who, by the way, I suggested would make an interesting nominee himself), and even seems to understand issues surrounding fair use and the basics of how DVRs work.

I'm starting to think Kagan could be a keeper.

Updated: removed extra pagination

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By the way, I've been very happy with the quality of discourse on the ZDNet Government TalkBacks recently. A lot of heavy topics have been discussed, but most postings have been intelligent, constructive, and really interesting. When discussing a Supreme Court nominee, there are some sensitive topics involved, so please keep up the respectful, polite, and interesting discussion, okay?

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