Should MPAA be Nervous About Supreme Court Nominee?

Nominee Elena Kagan has a long history of taking a liberal “fair use” position on copyright debates, and even helped beef up Harvard Law School’s, best known for defending accused file-sharer Joel Tenenbaum.

Now that President Obama’s nomination of Elena Kagan to be a justice on the US Supreme Court is official, it seems Hollywood has plenty to be nervous about. Kagan, who has never served as a judge, is leaving critics frustrated by a lack of a paper trail to peg her judicial philosophy, but if her record on intellectual property matters is any indication, the MPAA is right to be concerned.

Kagan has repeatedly taken a liberal position on “fair use” in copyright debates. In fact, during her stint as dean of Harvard Law Schhol from 2003 to 2009 she was responsible for beefing up its Berkman Center for Internet & Society by recruiting Lawrence Lessig and other legal minds who share her liberal position on “fair use” rights.

Lessig is noted for having called the copyright wars against P2P our “new prohibition,” and cited the fact that file-sharing has only grown over the years, breeding additional contempt for copyright holders and outdated copyright laws.

The Berkman Center for Internet & Society was the first to urge other universities to literally tell the RIAA to “take a hike” during the music industry’s infamous, and ultimately failed campus crackdown on file-sharing college students. It pointed out that it’s a university’s duty to follow its own mission, and not that of a private business trying to “preserve an obsolete business model.”

It’s also the home of Professor Charles Nesson, who’s best known for defending accused file-sharer Joel Tenenbaum. That effort failed, and Tenenbaum was found guilty of copyright infringement this past August, but Nesson has nonetheless been consistent in his criticism of antiquated copyright laws and the tension it has on the social reality of “digital natives,” those that have grown up immersed in a digital world.

Most worrying to Hollywood should be however, Kagan’s brief to the Supreme Court last June when she sided with Cablevision in its fight with Hollywood for allowing subscribers to store content on the cable provider’s servers instead of the hard-top TV box.

She compared DVRs to VCRs, and emphasized “fair use” rights in her submission.

So Hollywood breathed a sigh of relief last May when she was passed over in favor of Sonia Sotomayor. Now that Kagan’s nomination is official, the MPAA has a lot to worry about, and “fair use” proponents may soon be able to rest easy knowing at least one justice thinks as they do.

Now if only we had more legislators who who were “fair use” proponents.