How Elena Kagan might rule on Hollywood cases

Another interesting attorney guest post from Ben Sheffner, an NBC Universal lawyer, blogger and Billboard columnist ...

By Ben Sheffner

Supreme Court nominee Elena Kagan endured questioning at the end of June from the U.S. Senate Judiciary Committee about the weightiest legal issues of the day. Abortion. Separation of powers. The president's authority in wartime.

But even though committee chairman Patrick Leahy, D-Vt., is a champion of the recording industry and strong copyright protection for all creators, Kagan managed to avoid a grilling on her views about the proper scope of the Digital Millennium Copyright Act's safe harbors or whether sound recordings properly qualify as works made for hire.

To get a sense of how she would rule on issues of interest to the entertainment industry, we are instead left to scour her record for tea leaves. Let's take a look.

In 1987, while a law clerk for Supreme Court Justice Thurgood Marshall, Kagan wrote a memo recommending that the high court hear a copyright case in which the 2nd Circuit had ruled in favor of author J.D. Salinger, who had sued to stop publication of an unauthorized biography that had quoted extensively from his letters, rejecting the publisher's fair use defense.

Kagan's memo strongly criticized the court's opinion -- which has become a favorite of copyright owners -- as well as the Supreme Court's 1984 decision in Harper & Row v. Nation, which established the important principle, now often cited in sampling cases, that a use is unlikely to be fair if it takes the "heart" of a copyrighted work.

In 1990, while an associate at the prominent Washington, D.C., law firm Williams & Connolly, Kagan drafted an amicus curiae brief for the RIAA, arguing that 2 Live Crew's 1989 album, "As Nasty As They Wanna Be" -- which included songs like "The Fuck Shop" and "Dick Almighty" -- wasn't obscene.

"'Nasty' does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response," Kagan argued to the 11th Circuit Court of Appeals, helping to convince the appellate court that the raunch-fest didn't meet the legal standard for obscenity.

In a 2008 speech, while dean at Harvard Law School, Kagan lavished praise on the university's Berkman Center for Internet and Society, which was founded by Harvard law professor Charles Nesson, who unsuccessfully defended file-sharer Joel Tenenbaum in a copyright infringement suit filed by the four majors.

The Berkman Center has exhibited virtually unremitting hostility to the music industry, and Nesson's arguments in the Tenenbaum case, had they succeeded, would have eviscerated copyright protection on the Internet.

And as solicitor general -- the Department of Justice's top appellate lawyer -- Kagan signed a 2009 brief urging the Supreme Court not to hear a case brought by several major film and TV studios against Cablevision about its proposed "remote-storage DVR." The appellate court's decision narrowly construing copyright owners' exclusive rights to reproduce and publicly perform their works alarmed major copyright owners, and the RIAA, the National Music Publishers' Assn., ASCAP and BMI all weighed in supporting reversal. But Kagan's brief asked the Supreme Court to stay out of the fight, leaving in place a decision that some fear could authorize cloud-based music services to operate without licenses from labels or publishers.

So what does all this add up to? It's important to keep in mind that in each of the cited activities, Kagan was playing a specific role. Sometimes she was representing a client, so it's not fair to equate the views she expressed as a litigator with her personal opinions.

Still, it's reasonable to conclude that she likely takes a broad view of fair use -- not necessarily a bad thing for labels, which have cited the fair use doctrine when defending themselves against sampling claims. And the industry can't help but be concerned that, while at Harvard, she may have absorbed, at least through osmosis, the highly skeptical view of copyright that pervades academia.

In coming years, the Supreme Court will not be able to duck the many big issues facing the industry, including termination of transfers under the 1976 Copyright Act and the continuing menace of Internet piracy. It's impossible to predict from Kagan's record how she'll vote on any particular case.

But despite the concerns that some aspects of her career may raise, there's no denying that Kagan is smart, understands the issues and is a quick study. And entertainment industry lawyers say that's exactly the kind of justice they would like to hear their cases.

Ben Sheffner is a copyright attorney who has represented movie studios, TV networks and record labels. Sheffner works as an attorney in the NBC Universal Television Group, which is 20% owned by Vivendi, the parent of Universal Music Group. He is the author of the Copyrights & Campaigns blog
(copyrightsandcampaigns.blogspot.com). Got an idea for a guest post? Email us at [email protected].