Why Elena Kagan Makes Hollywood Nervous

July 6, 2010
By James L. Hirsen, J.D., Ph.D.
contributor to Newsmax.com

The embarrassing excuse for a hearing that our representatives recently held for Supreme Court nominee Elena Kagan is now over.

It appears as though it’s a lock for the nonjudge to get her own seat on the highest court in the land.

Interestingly, though, Hollywood is a bit apprehensive over the Supreme Court wannabe.

Members of the U.S. Senate Judiciary Committee never got around to covering some of the key legal issues that weigh heavy on the minds of Hollywood executives and artists. Too busy sidestepping and yukking it up, I guess.

Hollywood’s trepidation comes from Kagan’s thin-yet-revealing record on a subject near and dear to entertainment industry hearts: copyright law.

In the late 1980s, Kagan was a law clerk for Supreme Court Justice Thurgood Marshall. She wrote a memo urging the Supreme Court to accept the appeal of a lower court case decision.

The case was one in which author J.D. Salinger had successfully stopped the publication of an unauthorized biography that had quoted at length from his letters. A lower court, the 2nd Circuit, had summarily rejected the fair use defense that the publisher of the unauthorized Salinger biography had asserted.

As owners of intellectual property, members of the Hollywood community loved the lower court’s decision. But Kagan slammed the ruling while trying to persuade the high court to give the appeal a hearing.

Kagan also had a previous gig as dean at Harvard Law School. While she was there she made a speech in which she expressed her admiration for the school’s Berkman Center for Internet and Society.

But the Berkman Center happens to be quite hostile to Hollywood, and the feeling is mutual. It typifies the academic view that seeks to limit copyright protection.

The Center was founded by Harvard law professor Charles Nesson. Nesson defended Internet pirate Joel Tenenbaum in an infringement suit, which was filed by multiple entertainment companies. The professor was unsuccessful in the case.

Another instance in which Kagan heightened Hollywood tension happened in 2009. In her current capacity as solicitor general, she filed a brief asking the Supreme Court not to hear a case in which major Hollywood studios were pitted against Cablevision. The case was about the cable company’s proposed use of what has been termed “remote-storage DVR.”

Kagan asked the Supreme Court to let stand a lower court ruling, which severely limited the rights of owners of creative intellectual property to demand permission to use their property.

With Hollywood in the fight of its life over Internet piracy, Kagan’s positions aren’t providing much in the way of Tinseltown comfort.