Will the film, music, and publishing industries oppose Kagan’s nomination?

It will be interesting to see whether the film, music, and publishing industries generate or fund any opposition to Elena Kagan’s nomination to the Supreme Court. As the Hollywood Reporter states, the entertainment industry’s “worry about Kagan might be her philosophy on intellectual property matters. As dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on ‘fair use’ in copyright disputes.” Later, as Obama’s Solicitor General, she successfully argued against Supreme Court review of a 2d Circuit decision, opposed by the entertainment industry, that allowed Cablevision subscribers to store television programs they had recorded on the cable providers servers rather than on the subscribers’ own, in-home boxes. In the brief she filed in the Supreme Court opposing review, she emphasized the importance to the decision of fair use principles. The parties to the lawsuit had decided that fair use should not be considered in the case. Kagan therefore therefore argued that the case was not an appropriate vehicle for Supreme Court review of the issues raised by Cablevision’s actions:

When a subscriber engages in time shifting, recording the program and playing it back are two sides of the same coin. If fair-use principles would excuse a cable company from liability for unauthorized reproduction when an RS-DVR system copies and stores a program on a hard disk at a subscriber’s behest, the same principles might excuse the company from liability for unauthorized public performance when the system transmits the program to the subscriber for playback. Here too, the parties’ agreement to litigate the case without reference to fair-use principles has elevated to great importance a question that otherwise might have been insignificant. Brief for the U.S. in Cable News Network, Inc. v. C.S.C. Holdings at 14 (footnote omitted).