What Kagan Would Mean for Tech

By Niraj Chokshi

Some bloggers are trying to read the tea leaves on Elena Kagan and how she would rule on technology cases if she makes it to the Supreme Court.

Nothing is certain, but Kagan may prove to be an opponent of corporate Hollywood on fair use while also defending Internet service providers in the net neutrality debate.

Hollywood should be nervous by Kagan's stance, argues The Hollywood Reporter's Eriq Gardner. Evidence is limited but her role last year in a copyright case is telling, he argues. In 2006, Cablevision announced plans to offer customers a remote TiVo-like service and was promptly sued by Hollywood movie studios, which feared the loss of on-demand licensing fees. Hollywood eventually lost and appealed to the Supreme Court. Solicitor General Kagan succeeded in urging the Court not to review the case last June and she chastised Cablevision for not making fair use a bigger issue. That, Gardner argued, was a sign that Kagan will side with civil liberties advocates:

[It] should cheer those on the copy-left at the EFF and worry many in the entertainment industry. If this is what our new Solicitor General thinks the Supreme Court should be considering, the industry should be watching her closely.

But Gardner's conclusive interpretation isn't shared by all. TMCnet's Ed Silverstein reports that Kagan's stance is far from clear according to Todd Dickinson, the head of the 16,000-member American Intellectual Property Law Association. And Dan Farber, a professor at the University of California-Berkeley Law School, agreed: "So far as I know, she's never taken a public position about an IP issue."

On net neutrality, Kagan may end up siding with internet service providers, argues University of Nebraska-Lincoln Law Professor Marvin Ammori. In the 1990's cable companies tried to fight a law promoting diverse speakers on cable by calling it a burden on their free speech rights to pick and choose the channels subscribers receive. In a 1996 piece that Ammori calls "one of Kagan's few major articles," she sided with them. While the evidence isn't decisive, she may agree with ISPs who similarly argue that it's their First Amendment right to restrict access to websites and technologies on the web.

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This article available online at:

http://www.theatlantic.com/technology/archive/2010/05/what-kagan-would-mean-for-tech/56549/