Why Elena Kagan might not be so bad for Hollywood

By Eriq Gardner

We earlier outlined why Hollywood should be nervous about Elena Kagan's nomination to the U.S. Supreme Court.

But there's also a strong possibility that Kagan's move could end up being a positive for the industry -- at least in one respect. That's because if solicitor general Kagan is confirmed, it would free up a spot for someone to replace her. There's already speculation on who that might be, and among the names being floated -- perhaps the favorite, in fact --  is Donald Verrilli.

Who is Verrilli and why might it matter?

He's been on the front lines in the war against piracy.

Formerly a senior litigator at Jenner & Block, Verrilli argued the industry's position in the U.S. Supreme Court's landmark 2005 Grokster case, which resulted in a unanimous decision that P2P file-sharing companies could be sued for contributory infringement. Verrilli also represented the recording industry in the first case against an individual file-sharer to reach a verdict -- the trial against Jammie Thomas, who was convicted of sharing songs on Kazaa. Later, Verrilli led the team that represented Viacom in its $1 billion lawsuit against Google for copyright infringement on YouTube (that case is still going strong).

It's worth pointing out that if Kagan is confirmed, she may not swing the court significantly on copyright matters, even if it turns out that she's a fierce believer in giving technology companies wide latitude from copyright liability. After all, the justice she's replacing is John Paul Stevens, who wrote the opinion in the famous Sony Betamax case that first grappled with "fair use" issues in the technology age and established that content holders shouldn't be able to kill devices that have "significant non-infringing uses." 

On the other hand, if Verrilli were to replace Kagan as solicitor general, we have a hard time believing from our conversations with him over the years that he'd be the type to write a brief like Kagan did in the Cablevision case. Her argument criticized the parties in a copyright dispute for taking "fair use" considerations off the table.

Compare Kagan's brief, where she raises the possibility that fair use principles might have excused an activity that the entertainment industry thought was infringing, to what Verrilli had to say during the Grokster hearings when being pressed by Justice Stevens:

"I think what Grokster and StreamCast are arguing is that this Court's decision in Sony stands for the proposition that their massive actual infringement is -- gets a free pass, a perpetual free pass, so long as they can speculate that there are noninfringing uses out there, such as public-domain uses and authorized uses. We don't think that -- that Sony stands for any such proposition."

Perhaps the Supreme Court will one day grapple with the UMG/Veoh case or even the Viacom/Google battle. If so, it will matter who that solicitor general is.