Princeton values money-grubbing over open contribution to current political debate.

Whether or not it is merited, there is considerable political import being attributed to Elena Kagan’s college thesis, a study of the collapse of Socialism as a political movement in the U.S. in the early decades of the 20th Century. On the far right, the thesis is being touted as proof that “Elena Kagan is an open and avowed socialist.” Slightly less conclusory, the Weekly Standard acknowledges that “[o]bviously, one imagines that Kagan’s views have evolved significantly over the last three decades” since her work as an undergraduate, but asserts that “it’s certainly worth noting the radical roots of the nation’s top lawyer.”

What is this evidence of the “radical roots” of Elena Kagan’s thinking? In the conclusion of the 130 page undergraduate paper that describes the political dissolution of the organized socialist political movement in New York City during the first couple of decades of the 1900s — largely due to the conflicts the Socialists came into with the Communists —  she wrote:

In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? . . .

Through its own internal feuding, then, the [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.

Ben Smith of Politico concludes that the thesis is written “from a general sympathetic position,” but that really what it all adds up to is her “practical minded conclusion” that “for those who . . . still wish to change America” the lesson is “[i]n unity lies their only hope.”  Smith concludes that “if there is a takeaway for the Kagan of today, I think it’s that practical-minded conclusion, and the sense that she is, in the end — and like Obama — a very practical pol.”

Andrew Leonard takes an even more pro-Kagan view of the thesis, concluding that it proves her “a superb writer who grounds her argument in scrupulous attention to historical detail.” Leonard, while he may be over-inflating the importance of undergraduate work, at least recognizes that the thesis cannot be viewed as propaganda but, instead, involves a complicated history completely ignored by those who would reduce political debate to simplistic labels like “socialist” or “fascist” or “conservative” or “liberal.” The history Kagan addressed in her thesis involved the fight against the truly atrocious labor standards faced by U.S. factory workers, and to ignore that context and how far we’ve come would be to engage in stupidity. Leonard writes:

Kagan makes a pretty good case that sectarian bickering and factionalism doomed the Socialist Party to irrelevance. The leaders of the New York Socialist Party embraced a moderate, accommodationist approach to improving worker conditions that put them at odds with rank-and-file workers who tended to be more militant. This made it easy for Communist Party organizers to infiltrate the garment worker unions and challenge the Socialist Party leadership’s control. Ultimately, a disastrously mishandled strike destroyed the credibility of both the Socialist and Communist factions, and worker demands for better conditions were sublimated into Roosevelt’s New Deal.

It would be stupid to infer what I believe now from what I wrote as an Ivy League senior in 1981. Yes, I’m Kagan’s precise contemporary. It is also stupid to run fearfully under the cover of words like “socialism” and “radicalism” without understanding that the history of a century ago that Kagan did write about nearly 30 years ago involved fights against injustice in which almost everyone in this country today would side with the “socialists” and “radicals.” I don’t think we want to return to the days when labor in this country was treated the way labor is in, say, China today.

But perhaps the stupidest thing of all is this: as Techdirt reports, Princeton has asserted that distribution of the thesis infringes the university’s copyright in it and has demanded that it be taken down from sites that have posted it.  ”The University is selling copies of her thesis, and apparently the commercial value just shot up:

It has been brought to my attention that you have posted Elena Kagan’s senior thesis online…. Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Even assuming the newsworthiness of the thesis, its age, the youth and inexperience of its author and other factors do not make posting the thesis a non-infringing fair use, Princeton’s move is just stupid. One year ago, Princeton’s endowment was nearly $13 billion. Money-grubbing over a few bucks to be made on a new-found asset in the undergraduate work of a student from 30 years ago hardly seems a worthy of an institution that prides itself on conferring true genuine education to its student body and wisdom to the world.

I dont know how to tell you all just how crazy this life feels

From MSNBC:

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, “Running on Empty,” in a campaign commercial that targeted Obama’s energy plan. . . .

McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks added):

The campaign’s fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that’s an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon’s “Imagine” in a film); and the effect of the use of the song (McCain says that rather than damage the song’s commercial potential, his use “will likely increase the popularity of this thirty year-old song”).

In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which the court dismissed Mastercard’s lawsuit against Ralph Nader’s 2000 Presidential Campaign Committee. Mastercard’s lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard’s “priceless moments” television ads infringed on Mastercard’s copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a “transformative” work. Whether it “comments” on the original is the issue in question. MasterCard’s message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be “purchased” or are “priceless.” Hence, “there are some things that money can’t buy.”

This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card–”for everything else, there’s MasterCard.” Ralph Nader’s Political Ad attempts to show various ways different Presidential candidates can be bought in the “big-money arena of Presidential politics” and contrasts the “priceless” truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, “which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks.” This commentary “may reasonably be perceived.” The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader’s Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative.

William Patry, Google’s Senior Copyright Counsel, opines on typically futile efforts to use copyright to quell political speech here. There is a long history of this type of thing, as I’ve mentioned here and as you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted works being used: